Green v. Carbaugh, Civ. A. No. 78-0768-R.

• Decision Date: 29 November 1978
• Docket Number: Civ. A. No. 78-0768-R.
• Citation: 460 F. Supp. 1193
• Court: U.S. District Court — Eastern District of Virginia
• Parties: James C. GREEN et al. v. S. Mason CARBAUGH, etc., et al.

460 F. Supp. 1193

James C. GREEN et al. v. S. Mason CARBAUGH, etc., et al.

Civ. A. No. 78-0768-R.

United States District Court, E. D. Virginia, Richmond Division.

November 29, 1978.

Robert F. Brooks, G. H. Gromel, Jr., Hunton & Williams, Richmond, Va., for plaintiff.

John B. Purcell, Jr., Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM AND ORDER

WARRINER, District Judge.

On 26 October plaintiff filed a motion pursuant to 42 U.S.C. § 1988 for counsel fees and costs in this action. The parties have filed briefs in support and in opposition on the assumption that § 1988 is applicable to the action sub judice.

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, was enacted in reaction to Alyeska Pipeline Service Co. v. Wilderness Soc., 421 U.S. 420, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) and its purpose was to encourage plaintiffs to file suits to vindicate the public interest in such things as racial equality and other such matters in which the primary beneficiary is the public in general. Cf. Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-2, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).

The language of the Act sweeps far broader than even this extensive purpose. The Civil Rights Acts, especially 42 U.S.C. § 1983, which formed the basis for awarding counsel fees have been extended by the Courts to such an extent that one who disagrees with the ruling of a State administrative officer and who is damaged thereby may arguably state a claim under § 1983. If it be found that the administrative officer failed to give due consideration to certain proffered evidence, say, or that he failed to observe specified time limits, or that he exceeded his authority in some particular, then a "due process" case under § 1983 may exist. See, e. g. Brown v. Culpepper, 559 F.2d 274, 277 (5th Cir. 1974).

State administrative officers make, the Court supposes, hundreds of decisions each day which affect the economic well-being of citizens with pending applications and the like. Since State administrators (like federal judges) are human, they will inevitably err from time to time. Without regard to any disability which a plaintiff may or may not be suffering and without regard to any degree of good faith on the part of the administrator, it is not unlikely, under the decisions, that such error will be deemed to be of constitutional proportions as a denial of "due process."

In this case there is no claim or evidence that plaintiffs suffer under any disability that should make them especially favored by Congress. They are white males of unknown age. They own, from all appearances, a successful tobacco warehouse in the heart of the tobacco growing area of Virginia. One is the Lt. Governor of the State of North Carolina. The other is a doctor. They were able to obtain the services of the largest and one of the most prominent law firms in the Commonwealth. More importantly, while there is some finding of public interest in avoiding confusion among tobacco farmers as to where they might market their tobacco, the overriding and all pervading purpose of the litigation was the personal financial interest of the plaintiffs. They did not want their tobacco market closed during the first two weeks of the selling season. They were successful in this action in that regard and thus presumably suffered no financial loss in the operation of their warehouse.

By contrast, the defendant Carbaugh's only interest in the subject matter of this litigation was the public interest. The ruling which he made which denied plaintiffs due process was not made for personal gain or for any other personal benefit to defendant. He had determined that plaintiffs owned the Jimmy Green Warehouse in Halifax County, Virginia, and that the management of the warehouse had...