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November 16, 1978

G & U, INC., et al., Defendants

The opinion of the court was delivered by: HAIGHT


Plaintiff Mid-Hudson Legal Services, Inc. ("Mid-Hudson"), a federally-funded legal services corporation which provides legal assistance and counseling to migrant farm workers, initially brought this action against G & U, Inc., the operator of a farm in Orange County, N.Y. employing such workers, to gain access to defendant's camps for the purpose of advising and assisting workers resident therein. Defendant, in an incident occurring on June 13, 1977, had denied such access. After a hearing this Court permanently enjoined G & U from denying Mid-Hudson access to the camps, while rejecting Mid-Hudson's claims for compensatory and punitive damages. 437 F. Supp. 60 (S.D.N.Y.1977) ("M-H I "). Neither party appealed. Thereafter Mid-Hudson applied pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, for an award of attorneys' fees against G & U. This Court denied the claim, on the alternative grounds that the statute did not apply, and that in any event an award would be inappropriate. 443 F. Supp. 893 (S.D.N.Y.) ("M-H II "). The Second Circuit reversed, 578 F.2d 34 (2d Cir. 1978) ("M-H III "), holding that the claim fell within the statute, that this Court had applied an erroneous test in denying the claim, and remanding the case for an evidentiary hearing in accordance with City of Detroit v. Grinnell Corp., 495 F.2d 448, 468-74 (2d Cir. 1974) and subsequent authority. That hearing having been held, this opinion follows.


 We start with certain principles and criteria declared by the Second Circuit and consequently binding upon this Court.

 On the particular subject of awards of attorneys' fees under § 1988, the Second Circuit in M-H III teaches that the statute "must be applied broadly to achieve its remedial purpose"; that a successful plaintiff under § 1988 "should ordinarily recover an attorneys' fee unless special circumstances would render such an award unjust" (quoting legislative history); and that at the evidentiary hearing mandated by City of Detroit, supra, the prevailed-upon defendant has "the burden of establishing what special circumstances, if any, render any such award unjust." 578 F.2d at 37-38. See also Zarcone v. Perry, 581 F.2d 1039 (2d Cir. 1978).

 On the general subject of determining the reasonable amount of an attorney's fee, the Court in City of Detroit, supra, at 470-473, rejected "cumbersome rules" formulated by other tribunals *fn1" in favor of a streamlined analysis focusing primarily on the amount of attorneys' time spent on the case and the value of that time (what was done and by whom); and thereafter upon "other, less objective factors," of which "the foremost . . . is the attorney's risk of litigation," which turns upon such considerations as initial probability of success, novelty or complexity of the issues, and the like.

 We consider these questions in order.


 G & U, recognizing as it must that Mid-Hudson prevailed on a question of constitutional significance, nonetheless argues vigorously that "special circumstances" exist which should bar or substantially reduce an award of attorneys' fees. *fn2"

 In essence, G & U contends that "the conduct of the plaintiffs during the summer of 1976 and during the incident of June, 1977 was outrageous," to which G & U's denial of access "was nothing more than a natural response" (defendant's brief at p. 3). In these "special circumstances," it is said, Mid-Hudson has forfeited its right to attorneys' fees.

 The circumstances giving rise to what this Court in M-H I characterized as "an unmistakable animus between the parties," 437 F. Supp. at 62, were explored at length during the recent hearing, which extended over three days and involved virtually every actor in the drama. *fn3" G & U contends that as the result of incidents occurring during the summer growing season of 1976 and the winter of 1977, those in charge of G & U had justifiably come to perceive Mid-Hudson personnel in general, and one of its staff attorneys, Howard Schell Reilly, in particular, as trouble makers, fomenters of dissatisfaction and unrest, Agents provocateurs, and labor union organizers, all such activities being in contravention of Mid-Hudson's charter. That perception prompted Harold Utter, the president of G & U, to greet Reilly with the phrase "not you again" when, on the evening of June 13, 1977, Reilly and his colleague Anthony Szczygiel sought access to the camps, an access which Utter thereupon denied, thereby triggering this litigation. See M-H I at 437 F. Supp. 61. That denial of access, G & U urges in resisting the present application, was made in good faith, and in response to the aforesaid perception of Reilly as a trouble maker, compounded by the Utters' understandable resentment of foul, abusive and threatening language which Reilly used during his visitations to the G & U office.

 In addition, G & U argues that Mid-Hudson "set up" G & U as a target for a test case, and, consistent with that strategy, failed to make reasonable efforts to settle the dispute short of litigation.

 Upon careful consideration of the evidence adduced at the hearing, I conclude that these several elements, singly or in the aggregate, are insufficient to establish those "special circumstances" which would bar or reduce an award of attorneys' fees under § 1988.

 That is not to condone all aspects of Mid-Hudson's behavior. I find that, during his efforts to serve papers in an unrelated matter upon one of the Utter brothers at the farm in February of 1977, and during the June 13, 1977 incident underlying this litigation, Mr. Reilly used foul and abusive language to a substantially greater extent than he acknowledged in his testimony. Mr. Reilly has strong feelings and a short fuse. Contemplating his behavior, as revealed by the evidence and on occasion by courtroom demeanor, one is led to reflect upon the ease with which we may pass from pursuit of a rightful cause to the arrogance of the self-righteous. But Mr. Reilly's actions and speech, while at times excessive, were in part provoked by Mr. Utter's attempted evasion of service of process in February of 1977 (he refused to identify himself), and the defendant's intransigence on June 13. In any event, bad manners must rise (or sink) to a higher (or lower) level than that revealed by this record to constitute special circumstances depriving a successful civil rights plaintiff of statutory attorneys' fees.

 As noted Supra, G & U stresses certain incidents occurring in the summer of 1976. They are said to reflect improper activities at the farm and camps by Mid-Hudson, so as to explain in human terms, if not justify legally, the denial of access in June of 1977. The argument fails for two reasons. First, G & U has not proved improper behavior by Mid-Hudson in 1976. G & U witnesses testified that Mid-Hudson personnel were seen at the camps at the same time as one Oscar Nieves, a representative of the labor department of the Commonwealth of Puerto Rico; and also that representatives of the Cesar Chavez farm workers' union were at the camp at the same time as Mid-Hudson personnel. From these observations, G & U apparently drew the inferences that Mid-Hudson was acting as an agent of the Commonwealth in enforcing its own regulations regarding migrant workers from Puerto Rico; and that Mid-Hudson was aiding the union in soliciting membership. While such activities would undoubtedly fall outside Mid-Hudson's charter it concedes as much the evidence is far too tenuous to permit the inference that Mid-Hudson was in fact pursuing such activities. Joint presence at the camps is not enough. Mid-Hudson personnel frequently visited area camps, in aid of their "outreach" programs. *fn4" So, apparently, did Mr. Nieves and union officials. Joint presence does not prove concerted action. Furthermore, Mid-Hudson could appropriately counsel Puerto Rican workers, at least initially, on questions arising out of their immigrant status, or all workers with respect to their right to join a union or bargain collectively. Thus the presence of Mid-Hudson personnel at the camps together with these other individuals, even if they were brought together by mutual concerns (and the proof of that is far from clear), falls short of demonstrating improper activity by Mid-Hudson. Mid-Hudson's witnesses specifically deny such activities falling outside its charter, or any improper tampering with G & U workers. I accept their evidence. G & U has not proved improper actions by Mid-Hudson in 1976.

 Even had it done so, the incident with which this litigation is concerned occurred in June of 1977. There were administrative channels through which G & U could have protested Mid-Hudson's perceived 1976 activities. It did not do so. G & U does not even suggest that, when Reilly and Szczygiel appeared on June 13, 1977 to request the access to which they were constitutionally entitled, the situation was in any way complicated by the Commonwealth of Puerto Rico or the Chavez union.

 I touched upon this point in my first judgment. Mid-Hudson argued at the hearing on the present application that what I said there *fn5" constituted the law of the case here, thus foreclosing G & U's effort to establish special circumstances. I admitted G & U's proffered evidence to permit it to show, if it could, that circumstances which failed to justify denial of access might, nonetheless, justify a denial of attorneys' fees incurred in establishing the right to access. I conclude, however, that no such circumstances are present.

 G & U's last contention on this aspect of the case is that Mid-Hudson set up G & U, a leading grower in the area, as a litigation target, thereafter spurning any efforts at settlement. The Second Circuit has said, in its most recent consideration of attorneys' fees under § 1988, that district courts should consider "the presence or absence of any bad faith or obdurate conduct on the part of either party," Zarcone v. Perry, 581 F.2d 1039, 1044 (2d Cir. 1978). However, no such conduct is demonstrated by this record.

 In the first place, G & U made itself a litigation target by its unjustified denial of access to Reilly and Szczygiel on June 13. I found in M-H I that G & U's posture on that evening represented a departure from the full access to the camps and workers previously granted to Mid-Hudson; *fn6" G & U thereupon became a target for litigation, but by virtue of its own acts.

 As to settlement, the record shows that the parties' attitudes effectively foreclosed the possibility. Reilly testified, and I find, that on the evening of June 13 Harold Utter told Reilly that he would not be permitted back in the camp "this year," unless Reilly could show that he had a pre-arranged appointment with a particular worker. This statement on Utter's part reflected his determination to impose seasonal restrictions upon Mid-Hudson and its personnel. Timing was important for Mid-Hudson, since the most important services rendered by its farm workers' project take place during the growing season (April to November), while the migrant workers are in residence at the farms. Following the June 13 confrontation, Mid-Hudson attempted to commence a settlement dialogue. The managing attorney of the farm workers' project, Gene Reibman, apparently dictated a letter on June 14, suggesting such a discussion, to Messrs. Meehan and Fink, attorneys for G & U (PX3). Messrs. Meehan and Fink deny any recollection of receiving that letter, and there is no concrete proof to the contrary; it is common ground, however, that a number of days after the June 13 confrontation, and before litigation had been commenced, Reibman telephoned Meehan to discuss the possibility of settlement. Meehan replied, in substance, that Mid-Hudson personnel could enter the migrant workers' camps, on condition that they did not have anything to do with questions concerning the labor policies of the Commonwealth of Puerto Rico or the Chavez union. Reibman refused to agree to such conditions or limitations, insisting instead upon unlimited access. I find, in all the circumstances, that Reibman's position was reasonable. As pointed out Supra, it would be appropriate for Mid-Hudson to render assistance or advice to workers in certain respects, even within the contexts of the Puerto Rican labor law and collective bargaining. Reibman preferred, in my judgment reasonably, to insist upon that unlimited access to the camps which Mid-Hudson had enjoined in past seasons, leaving it to G & U to protest through presently-existing channels any excessive or improper activities. It is quite clear, given the ill will existing between the individuals involved, that any such general conditions as Meehan suggested to Reibman would carry within them the seeds of future and repeated controversy, as to whether or not the conditions had been violated.

 Termination of the telephone conversation between Reibman and Meehan also terminated any further efforts, by either party, to settle the dispute. Mid-Hudson went ahead with preparation of its complaint and papers in support of injunctive relief. G & U's counsel, although advised the day before of Mid-Hudson's intention to apply for a temporary restraining order, decided not to attend the hearing in chambers. Thus the final opportunity for a pre-injunction accommodation was allowed to pass by.

 In these circumstances, I cannot characterize the behavior of either party within the context of possible settlement as being so obdurate as to bear upon the question of attorneys' fees. Not every case can be settled. Parties have the right to advance contentions of principle, and to require adjudication by the courts. That is what occurred here. The case cited by G & U on this point, Naprstek v. The City of Norwich, 433 F. Supp. 1369 (S.D.N.Y.1977), is distinguishable on its facts. In Naprstek, the plaintiffs succeeded in their constitutional attack upon a municipal ordinance forbidding children under 17 years of age from being on the streets of the city during certain hours of the night. Plaintiffs then applied for an award of attorneys' fees under § 1988. Judge MacMahon, in the exercise of his discretion, denied the application. Recognizing the success of their constitutional attack, the court nevertheless observed that the plaintiffs, "with the barest standing, were challenging an antiquated, poorly-drafted, rarely-enforced juvenile curfew ordinance." 433 F. Supp. at 1370. The court then observed:

"In addition, counsel for the City of Norwich indicated at the outset of this lawsuit that they would be willing to meet with plaintiffs' attorneys to discuss possible redrafting in a effort to correct the alleged deficiencies of the ordinance, but this offer was refused. The City Council, furthermore, nullified the curfew ordinance before the Court of Appeals rendered its decision. All of these factors indicate, in our opinion, that the threat to the public interest posed by this curfew ordinance was so insignificant compared to the threat posed by racial or alienage discrimination, that an award of fees would be unwarranted and unjust in this case. In short, we think that neither Congress nor the Supreme Court intended that private attorneys general need be encouraged to make mountains out of molehills. Nor do we think that Congress intended to reward attorneys for burdening federal courts with unnecessary litigation when they have not even attempted to remedy their clients' grievances by talking out their differences with duly constituted executive and legislative authorities at the local level.
"Section 1988 clearly permits the award of counsel fees in appropriate cases involving serious threats to constitutional rights, or effectuating congressional policies of high priority, but this is not such a case. Furthermore, we will not encourage a wholesale scramble by lawyers to challenge possibly thousands of ancient and ineffectual municipal ordinances, on the expectation that counsel fees must be awarded automatically." Id. at 1371.

 In the case at bar, Mid-Hudson commenced litigation "to gain access to the workers at their place of abode in order to disseminate information and to provide legal assistance and counsel," for the purpose of implementing "a clear indication of the strong congressional interest in their welfare." M-H III at 36, 37. The question, in short, was one of considerable public significance. Secondly, there was no refusal on the part of Mid-Hudson to explore the possibility of settlement. Indeed, Mid-Hudson initiated a settlement dialogue in Reibman's ...

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