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July 1, 1998


The opinion of the court was delivered by: GOETTEL


 GOET,TEL, District Judge:

 The Court of Appeals has reversed and remanded this Court's Memorandum Decision of October 15, 1996, concluding "that the district judge's decision was based on clear errors of both fact and law." *fn1" LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 1998 U.S. App. LEXIS 9864, *24, 1998 WL 248641, at *9 (2d Cir. 1998). The case was remanded for a calculation of a reasonable fee to be awarded to the plaintiffs "in light of their substantial victory against the Village," id. at *17, despite the fact that the plaintiffs were completely unsuccessful as to most of the defendants and received neither compensatory nor punitive damages against any defendant.

 With respect to the claimed expenses, the decision requires that this Court "articulate which expenses, if any, it deems not reimbursable." Id. The appellate decision holds that a plaintiff is entitled to a fee award if he succeeded on any significant issue. Id. at *11. The Court of Appeals found that the injunctive relief granted the plaintiffs in this case was, in fact, significant. Id. at *12. The decision then held that, "when a plaintiff has achieved substantial success in the litigation but has prevailed on fewer than all of his claims, the most important question in determining a reasonable fee is whether the failed claim was intertwined with the claims on which he succeeded." Id. at *15. The Court of Appeals went one step further and found that the claims on which the plaintiffs succeeded were, in fact, based on the same core facts and law as most of the failed claims, and, therefore, "there should be a fee award for all time reasonably expended." *fn2" Id. at **15, 16.

 The legal fees sought, including costs *fn3" and fees incurred in connection with this most recent appeal, are approaching two million dollars. The defendant responsible for paying these sums is the small Village of Airmont. A fee and cost award in the amount obviously contemplated by the Court of Appeals could possibly bankrupt the Village. *fn4"

 This Court notes that, as appellate decisions are fond of saying when an issue may be determined based solely on the record, see, e.g., Manhattan Indus., Inc. v. Sweater Bee by Banff, Ltd., 885 F.2d 1, 7 (2d Cir. 1989), cert. denied, 494 U.S. 1029, 108 L. Ed. 2d 614, 110 S. Ct. 1477 (1990); Chris-Craft Indus., Inc. v. Piper Aircraft Corp., 516 F.2d 172, 186-87 (2d Cir. 1975), rev'd on other grounds, 430 U.S. 1, 51 L. Ed. 2d 124, 97 S. Ct. 926 (1976), the Court of Appeals was in as good a position as the District Court to make these determinations. Instead, however, the Court of Appeals chose to remand this matter to this Court. Since I decline, respectfully, to follow the directions of the Court of Appeals, I feel compelled to explain my position in some detail. Although this case has been the subject of a number of decisions, *fn5" the decision of October 15, 1996, which was reversed, was not published and, consequently, it is necessary to repeat many of the facts set forth therein. *fn6"


 Plaintiffs, who are Orthodox and Hasidic Jews, originally sued twenty-one defendants, asserting claims of religious discrimination with respect to the adoption of zoning ordinances restricting the operation of home synagogues in residential areas, dilution of their voting power, and the discriminatory treatment of Orthodox Jews in the area which had just become the Village of Airmont, pursuant to 42 U.S.C. §§ 1983, 1985(3), and the Federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq. The predominant relief sought was damages and the disestablishment of the newly formed Village of Airmont.

 The claims against most of the original defendants were either withdrawn or dismissed by this Court on motion. The case ultimately went to trial against five defendants individually and in their capacity as Trustees of the Village of Airmont and against the Village itself. The trial lasted seven weeks. The jury deliberations took a full week, an extraordinarily long time for deliberations in a civil case.

 The case was submitted to the jury on a special verdict form containing a number of interrogatories. The jury found that none of the individual defendants, either in their individual capacity or as Trustees of the Village, had violated plaintiffs' civil rights or their rights under the Fair Housing Act. The jury further found that they had not conspired with anyone to do so. The jury found that the voters who favored incorporation of the Village were not motivated even in part by discrimination against Hasidic or Orthodox Jews. The jury also specifically found that the Village did not undertake any action to intentionally deprive the plaintiffs of the right to enjoy the full and equal benefit of all laws and the use of their property because they were Orthodox or Hasidic Jews. The jury did find, however, that the Village had violated the private plaintiffs' fair housing rights and had conspired to violate their rights to the free exercise of religion and speech. The jury, nevertheless, did not award any damages against the Village, not even nominal damages, although they were instructed that they could. In all, the jury rendered twenty-three findings in favor of the defendants and only the two mentioned earlier in favor of the plaintiffs.

 The private action had been consolidated for trial with an action filed several months later by the U.S. Government against the Village and its then-Trustees (some had changed) under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., seeking declaratory and injunctive relief. The Government's action, as required by law, was decided by the Court. After hearing all of the evidence, this Court ruled in favor of the Village, finding that it had done nothing to interfere with the religious practices or fair housing rights of Orthodox Jews. See United States v. Village of Airmont, 839 F. Supp. 1054, 1064 (S.D.N.Y. 1993), rev'd, 67 F.3d 412 (2d Cir. 1995), cert. denied, 518 U.S. 1017 (1996). (Indeed, the Village had only begun operation two days before the private plaintiffs' action was filed and a half year before the Government's action).

 In addition to finding for the defendants in the Government's action, this Court set aside the two jury findings against the Village in the private plaintiffs' action, pursuant to Rule 50(b), Fed. R. Civ. P. LeBlanc-Sternberg v. Fletcher, 846 F. Supp. 294, 295 (S.D.N.Y. 1994), rev'd, 67 F.3d 412 (2d Cir. 1995), cert. denied, 518 U.S. 1017 (1996). This Court held that, while certain questionable statements may have been made by the individual defendants, the Village qua Village had done nothing to discriminate against the plaintiffs. This Court emphasized the inconsistencies inherent in the jury's responses to the interrogatories on the special verdict form. Id. at 295-96. Accordingly, in granting judgment as a matter of law, this Court held that there was only one conclusion that reasonable persons could reach as to the liability of the Village, in light of the jury's findings as to the individual defendants: no case had been proven. Plaintiffs in both actions appealed.

 The Court of Appeals reversed, starting with the Court's entry of judgment on behalf of the Village in the private plaintiffs' case. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 424-33 (2d Cir. 1995) ("LeBlanc-Sternberg I "), cert. denied, 518 U.S. 1017 (1996). The Court of Appeals attempted to harmonize the jury's responses by surmising that the jury was persuaded that the enactment of the Airmont Zoning Code in late 1992 was intended to limit home synagogues in residential areas, and violated the Fair Housing Act. Id. at 428. It concluded that this finding was "implicit" in the jury's verdict, id. at 430, which it found to be "consistent and fully supportable." Id. at 429. It then held that this "implicit" jury verdict collaterally estopped this Court from finding against the Government in the non-jury action, because the jury's findings on the private plaintiffs' Fair Housing Act claims against the Village "necessarily determined all of the liability issues" in the Government's Fair Housing Act claim against the Village. *fn7" Id. at 434. (That action would not seem to have been of any consequence for the plaintiffs in this case, since they had already obtained permission to conduct religious services in their homes). Amazingly, however, the Court of Appeals later used the Government's success as a basis for finding that these private plaintiffs had obtained a substantial victory. LeBlanc-Sternberg, 143 F.3d 748, 1998 U.S. App. LEXIS 9864, 1998 WL 248641, at *12.

 The Zoning Code, which the Court of Appeals found to be the basis for the jury's verdict, was not passed until almost two years after the private plaintiffs' action had been commenced. The Code had never been enforced nor interpreted as of the time of the jury's verdict. Neither the private plaintiffs nor the Government amended their complaints to make any claims concerning the Zoning Code. While the Zoning Code was of some consequence in the Government's Fair Housing Act case, it had little relevance to the private plaintiffs' suit, since they had earlier, through ...

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