author: OBERDORFER, District Judge.

text:
    Pearline E. FREEMAN and Bailey A. Freeman, Jr., Plaintiffs, v. B & B ASSOCIATES, et al., Defendants.
    Civ. A. No. 83-1984.
    United States District Court, District of Columbia.
    Sept. 20, 1984.

      David E. Fox, Washington, D.C., for plaintiffs.
    Michael J. Friedman, Rockville, Md., for defendants B & B Associates and W. Lawrence Brantley.
    William Daniel Sullivan, Melrod, Redman & Gartlan, A Professional Corporation, Washington, D.C., for defendant Beatrice B. Brantley.
   MEMORANDUM

OBERDORFER, District Judge.

This Truth-in-Lending case is before the Court on the plaintiff’s petition for an award of attorneys’ fees against defendants B & B Associates, W. Lawrence Brantley and Beatrice Brantley. Plaintiffs’ attorney, David Fox, has also requested that he be treated as an intervening party plaintiff for purposes of the attorneys’ fees claims. The underlying claim has been resolved by plaintiffs’ acceptance of defendants’ offer of judgment made pursuant to Rule 68, Fed.R.Civ.P. The accepted offer of judgment contemplates rescission of the note and deed of trust which imposed obligations on plaintiffs and return to defendants of the balance of the principal advanced to plaintiffs. The offer expressly provided, however, that it “includes an offer to pay costs but specifically excludes all liability for attorneys’ fees.”

Plaintiffs and Mr. Fox had agreed to a fee arrangement whereby

counsel fees would be paid by the defendants if plaintiffs prevailed, or if fees were not obtained from defendants, plaintiffs’ recovery would be reduced by a one-third legal fee (contingent on prevailing in the litigation).

Memorandum of Points and Authorities in Support of Plaintiffs’ Application for Award of Attorneys’ Fees from Defendants B & B Associates, W. Lawrence Brantley and Beatrice Brantley, Exhibit A at 2-3.

Plaintiffs demonstrate by affidavit, without contradiction, that at the earliest stages of the litigation Mr. Fox called defendants’ counsel’s attention to what appeared to be a controlling case on liability and proposed settlement by rescission, plus the attorneys’ fees that had been incurred up to that point. Plaintiffs’ counsel repeated the proposal on several other occasions. Defendants nevertheless engaged in costly litigation for many months before coming forth with virtually the same offer that plaintiffs had made, except for the attorneys’ fees.

The pleadings of the parties raise three issues:

(1) Are plaintiffs the prevailing parties?

(2) Is a fee award barred by the terms of defendants’ offer of judgment, which plaintiffs accepted?

(3) If defendants are liable for fees, what should be the amount?

I.

The Truth-in-Lending Act provides that:

[A]ny creditor who fails to comply with any requirement imposed under this part ... is liable to such person in an amount equal to the sum of—
(3) in the case of any successful action to enforce the foregoing liability, ... the costs of the action, together with a reasonable attorney’s fee as determined by the court.

15 U.S.C. § 1640(a)(3).

On July 12, 1983, plaintiffs, by counsel, had filed a complaint alleging, among other things, defendants’ failure to comply with the Truth-in-Lending Act, and praying for an injunction against foreclosure of a mortgage on their residence. Plaintiffs’ counsel succeeded in obtaining, first a temporary restraining order, and then an injunction which prevented foreclosure. Thereafter, defendants moved to dismiss, and for summary judgment. Their strenuous defense required plaintiffs’ counsel to seek and obtain judicial intervention to obtain discovery. After all these litigation maneuvers, defendants made the offer of judgment which plaintiffs accepted. Plaintiffs thereby succeeded in exonerating themselves from a burdensome obligation which, but for this litigation, would have cost them their home.

Defendants contend that even if plaintiffs may be said to have prevailed, the offer of judgment did not provide for any money damages, did not declare any violation of the Truth-in-Lending Statute, and was not a successful invocation of that statute. According to defendants, plaintiffs prevailed only on local law theories which do not provide for attorneys’ fees.

It is now well-established that a party is successful for purposes of assessing fees if he has obtained a successful result whether by judgment, settlement, of, in this case, acceptance of an offer of judgment. See Copeland v. Marshall, 641 F.2d 880, 904-05 (D.C.Cir.1980); James v. Home Construction Co., 689 F.2d 1357, 1358 (11th Cir.1982); see also Knighton v. Watkins, 616 F.2d 795, 798-99 (5th Cir.1980). Moreover, recent cases reject defenses based on technical distinctions between the contentions in a complaint which prevailed and those which did not. As the Supreme Court has recently stated:

Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983) (footnote omitted).

It is clear in the circumstances here that the language of the offer of judgment cannot paper over the fact that plaintiffs succeeded and that they succeeded in large measure because of their counsel’s ingenuity in invoking the Truth-in-Lending Act to oppose a home foreclosure and to achieve rescission of the underlying note and mortgage. The injunction against foreclosure and the offer of judgment here were the result of the possibility that if defendants went to trial, they would be held to be in violation of the Truth-in-Lending statute and suffer all of the heavy penalties there authorized. There is a clear causal connection between plaintiffs’ Truth-in-Lending claim and the successful result which was achieved. This is plainly “a successful action” by plaintiffs “to enforce” defendants’ liability under the Truth-in-Lending Act.

II.

Whether plaintiffs’ acceptance of the offer of judgment eliminated defendants’ liability for a fee for plaintiffs’ attorney is a more difficult question. Defendants contend with considerable merit that the offer of judgment, by its terms, “specifically excludes all liability for attorneys fees.” Offer of Judgment (June 18, 1984); Opposition of Defendants B & B Associates and W. Lawrence Brantley to Plaintiffs’ Application for Award of Attorney’s Fees at 2-3 (hereinafter Defendants’ Opposition). They concede that “whether or not to make [a fee award in this case] is committed to the discretion of this Court in the exercise of its equitable powers.” Defendants’ Opposition at 4. They contend, however, that “as the offer of judgment specifically excludes attorneys fees, the equities in this case clearly lie with the defendants.” Id.

Plaintiffs counter that their attorney has an independent claim against defendants for a fee, and that the plaintiffs had no power to compromise it. Plaintiffs and Mr. Fox rely upon recent Eleventh Circuit authority that in Truth-in-Lending as well as civil rights cases there are circumstances where the attorney may maintain his fee claim independently of the underlying claim of the client. James v. Home Construction Co., supra. In James, the attorney originally represented the plaintiff on a statutory fee basis. A successor attorney settled the case for rescission plus cash, and waived its fee claim. But the settlement made no provision for the first attorney’s fee. The first attorney intervened and persuaded the Court of Appeals that she had standing to seek fees after settlement of the case in chief. The Court held that “it is the attorney who is entitled to fees in a [Truth-in-Lending Act] case, not the client.” Id. at 1358. This principle is persuasive and will be followed here.

Judge Johnson’s opinion in James recognized that, as a “practical matter,” the award of attorney’s fees is a “critical and integral part” of Congress’ plan to create a system of private attorneys general who could “effectively enforce the Act without government intervention.” Id. at 1359. Moreover, Judge Johnson observed that:

If settlement of a [Truth-in-Lending Act] case precluded the plaintiff’s attorney from seeking a fee award, nothing would prevent indigent clients, who have no financial interest in statutory fee awards, from freely bargaining them away without personal detriment. Such a result would enable creditors who have violated the Act to escape liability for attorney’s fees; such a practice would thwart both the statute’s private enforcement scheme and its remedial objectives ____ Congress could not have intended such a result. Id. (citation omitted.)

These considerations helped to establish the attorney’s standing in James and in this case and tend to support the plaintiffs’ ultimate position here. But they do not resolve the particular issue created by the language of the offer of judgment. That is a matter, as defendants’ concede, within the Court’s discretion to be resolved by balancing equitable considerations. See Defendants’ Opposition at 4.

It is apparent that defendants’ offer of judgment confronted the plaintiffs and their counsel with a difficult problem. It was obviously in plaintiffs’ personal financial interest to accept the offer and be relieved of their heavy obligation, even though there was some risk that they could be out of pocket for an undetermined attorney’s fee.

The offer of judgment presented a cruel dilemma to the attorney. If he urged his clients to bargain for a fee, they would risk losing the chance to relieve themselves of their heavy obligation to defendants and from the continuing aggravation and risk of litigating against determined adversaries. Mr. Fox’s first obligation was to his clients. He could advocate his own fee claim only at their peril. Indeed, if he had even suggested that the fee issue be resolved separately from, and subsequent to, settlement of the merits, he could have put relief for his clients seriously in jeopardy.

A solution to such dilemmas may be an order or a rule requiring parties to settle the merits of a Truth-in-Lending claim separately from the award of statutorily authorized attorneys’ fees. This would eliminate a defendant’s opportunity to squeeze an attorney and his client into a situation where an attorney can only be assured of an opportunity for a fee by jeopardizing a settlement otherwise advantageous to his client. See Prandini v. National Tea Co., 557 F.2d 1015, 1021 (3d Cir.1977). There is, however, no such rule in this Court or in this Circuit. See Final Subcommittee Report of the Committee [of the District of Columbia Circuit] on Attorneys Fees, Bar Report, August/September 1984, at 4, 5-6. No such order was sought or issued in this case, and it did not occur to the Court to enter such an order sua sponte. Accordingly, it is necessary to resolve after the fact whether the plaintiffs’ acceptance of an offer in which they waived their right to collect an attorneys’ fee from defendants effectively barred Mr. Fox’s independent claim against defendants for that fee.

The astute defendants drafted the offer of judgment. They are chargeable with knowledge of the Eleventh Circuit’s precedent to the effect that the plaintiffs’ attorney had an independent claim and of the Third Circuit’s concern about the conflict which such offers automatically create. The offer of judgment must be construed strictly against them. They failed to make clear that the offer barred the attorney’s independent claim. Accordingly, that claim survives and must be considered.

A question remains, however, as to whether the attorney here is nevertheless precluded from recovery against defendants because of his fee agreement with his clients. If Mr. Fox could not collect a fee from defendants, he would theoretically be able to turn to his clients for payment. Thus, if Mr. Fox collected his fees from the defendants, his recovery would relieve the plaintiffs of that theoretical fee obligation. But the fee agreement is cast in terms of a cash recovery. There is no language in it contemplating the result achieved here: avoidance of foreclosure and rescission. This is therefore not a case where an attorney has a clear alternative claim against his client, making the attorney’s recovery against defendants a windfall for that client.

Thus, the plaintiff’s acceptance of the offer of judgment cannot impair Mr. Fox’s independent standing to seek fees from the defendants. If Mr. Fox is not allowed to recover from the defendants, other lawyers, considering such a precedent, would be reluctant to represent Truth-in-Lending clients — especially when their clients have little incentive to refuse an offer of judgment that purports to destroy an attorney’s recourse against a defendant. The effect on the availability of counsel willing to represent plaintiffs under such circumstances could effectively undermine the private attorney general concept upon which the Truth-in-Lending statute is based. See James, supra, at 1359. In the circumstances here, allowance of the attorney’s claim against defendants does not produce a windfall for the plaintiffs.

III.

The claim for attorney’s fees is supported by detailed statements of 62 tasks of legal work performed by Mr. Fox together with the hours consumed in each task. The items range from 16.5 hours for preparation of pretrial brief to .3 hours for Analysis of Trustees Opposition to Plaintiffs’ Motion for Preliminary Injunction. A review of the 251.1 hours charged by Mr. Fox shows them to be appropriate for the tasks performed. The relatively modest number of hours charged by associates indicates that Mr. Fox was doing the bulk of the work himself; the failure of the associates to itemize their time by tasks does not preclude their charging for it.

The hourly rates used by plaintiffs’ attorney to calculate his fee is commensurate with fees approved by this Court as the “market value” of the services of attorneys of comparable skill and experience, adjusted for inflation. Indeed, defendants do not seriously challenge these elements of plaintiffs’ fee claim.

In addition, plaintiffs seek an incentive bonus. There are good arguments in support of such an award where an attorney’s claim for a fee is entirely dependent on achieving results. Plaintiffs’ counsel achieved a good result here. He also achieved it in the face of very formidable and determined opposition. Moreover, plaintiffs are not regular clients or persons likely to bring this attorney additional lucrative business. Here, if Mr. Fox had been unable to recover fees from defendants, he theoretically might have obtained some compensation under his fee agreement with plaintiffs. But if the plaintiffs had not succeeded at all, Mr, Fox would have received nothing. Accordingly, a claim for some incentive award is justified.

Defendants’ challenge to the amount of the fee emphasizes the discrepancy between the amount recovered, i.e., the value of the rescission, and the amount of the fee. They do not mention the rescue from foreclosure achieved by plaintiffs’ attorney or the long term cost of refinancing the “balloon” portion of the rescinded loan. It is obviously difficult to quantify the value of the salvation of the home from foreclosure or the value of the rescission. But this difficulty does not justify defendants’ objections. The statutory fee is not measurable so much by the amount of the recovery as by the value of the services. Nevertheless, in computing a market rate for the fee, it is appropriate to consider how the market place would react to a fee grossly in excess of the values at stake, particularly where, as here, the issue on the merits was ultimately resolved by settlement rather than by a jury verdict or a court decision. The fee ultimately to be awarded is a “reasonable” fee, and the decision as to what is reasonable is within .the discretion of the Court.

Accordingly, all these things considered, the Court finds and concludes that it is reasonable for defendants to pay plaintiffs’ attorney an amount equal to his time charged at the rate of $100 per hour and his associates’ time charged at the rate of $75 per hour. It is appropriate in these circumstance to offset any incentive award by an adjustment to reflect the difficulty of fixing the money value of the result to plaintiffs. Accordingly, an accompanying order will award Mr. Fox a fee of $31,860.

Finally, defendants’ question a number of small items in the Bill of Costs. Plaintiffs have included in their Bill of Costs expenses incurred for transcripts (invoking 28 U.S.C. § 1920(2)), photocopying (invoking 28 U.S.C. § 1920(4)), fees for the clerk, and fees.for the service of process. The clerk has not yet taxed costs. It will be time enough to address these challenges when and if the clerk allows the entire Bill of Costs. Meanwhile, pursuant to the concern for expeditious award of attorney’s fees expressed in Parker v. Lewis, 670 F.2d 249 (D.C.Cir.1981), the accompanying order will treat the attorney as an intervenor in the plaintiffs’ claim for attorney’s fees and enter judgment for the attorney against the defendants B & B Associates, W. Lawrence Brantley and Beatrice Brantley.

ORDER

Upon consideration of the offer of judgment served by defendants B & B Associates, W. Lawrence Brantley and Beatrice Brantley upon plaintiffs, the petition of plaintiffs for attorney’s fees, the Bill of Costs, and the pleadings of the parties in respect to the foregoing, it is this 20th day of September, 1984, hereby

ORDERED, ADJUDGED and DECREED: that the transaction which is the subject of the Complaint herein, be, and the same hereby is, declared rescinded, and the parties shall give effect to such rescission as follows, the following to be effected simultaneously by appropriate extra-judicial means:

a. Defendants B & B Associates, W. Lawrence Brantley, and Beatrice Brantley shall, on or before October 15, 1984, cancel the Note which is the subject of the Complaint and shall cause to be released of record the Deed of Trust which secures the said Note; and

b. Plaintiffs shall, on or before October 15, 1984, pay to the said defendants the sum of $360.57, being the sum of $8,465.57 received by them less the sum of $8,105.00 subsequently paid by them to the said defendants; and it is further

ORDERED, ADJUDGED and DECREED: that David E. Fox shall be treated as a plaintiff intervenor for purposes of his fee application, and shall have judgment against defendants B & B Associates, W. Lawrence Brantley and Beatrice Brantly, jointly and severally in the amount of $31,860; and it is further

ORDERED: that, on or before September 28, 1984, the plaintiffs shall file a report advising the Court of the status of their suit against defendant J. Edwards.

EXHIBIT A

Final Subcommittee Report of the Committee on Attorneys Fees

3. Simultaneous Settlement of the Merits and Attorneys Fees

From the outset, this issue has provoked the greatest' controversy of any aspect of the subcommittee’s work. In its interim report, the subcommittee presented two sharply divergent views on the need for a rule regarding settling fee issues at the same time as settling the merits of a controversy in cases in which attorneys fees are available to the prevailing party because of fee shifting statutes or other similar rules of law. The issue has been the subject of litigation in various courts, an opinion by the Association of the Bar of the City of New York, present consideration by the Ethics Committees of the D.C. Bar and of the American Bar Association, and a student note in 131 U.Pa.L.Rev. 793 (1983).

One of the questions that the subcommittee posed was whether the issue ought to be left to litigation or was more appropriate for a rule. The subcommittee ultimately concluded that a rule was not advisable, largely because it was concerned that any lines that it might wish to draw would necessarily be imprecise and that no lawyer should be subject to discipline unless the rules were clear.

On the other hand, leaving the matter to litigation was unsatisfactory for a number of reasons, not the least of which is that it would provide no guidance to those attorneys who wished to conform their conduct to accepted norms, but were uncertain as to what those norms are. Accordingly, the subcommittee concluded that it would be useful to attempt to draft general guidelines that would be available for members of the legal community. While such guidelines would not preclude litigation, at least they would allow members of the Bar to know what is generally considered acceptable by the subcommittee, and perhaps by the full committee and the District Court as well. During the comment period on its draft report, the subcommittee became aware of a case now pending in the D.C. Circuit, Moore v. National Ass’n of Securities Dealers, Inc., No. 83-2213, in which one aspect of this problem is presented. For reasons set forth below the subcommittee decided not to await the decision in Moore, which has not been set for argument.

The issue of whether settlement discussions in fee shifting cases may properly include the settlement of fee issues, as well as the merits, presents two distinct problems. The first is whether simultaneous settlement involves such an inherent conflict between the plaintiffs and their attorneys that it ought to be uniformly prohibited. The second question is whether a defendant (or more precisely an attorney for a defendant) acts improperly by insisting on discussing settlement of both the merits and fees at the same time, thereby potentially creating a conflict between the plaintiffs and their attorneys. Because the issue are distinct, and the problems created rather different, the subcommittee decided to deal with them separately.

(a) Plaintiff-Plaintiffs Attorney Conflict

The problem posed in this situation arises because there is a potential that the plaintiff’s attorney will trade off benefits for the client, especially a class client, for his or her own fees, by settling the case in a manner advantageous to the attorney and less favorable to the client. The subcommittee recognized that there is a potentially serious problem but has concluded that a blanket prohibition against the simultaneous negotiation of the merits and of fees, adopted in Prandini v. National Tea Co., 557 F.2d 1015 (3rd Cir.1977), is not the best way to eliminate the difficulty.

If the client is an individual, the subcommittee concluded that disclosure of the fee to be paid the attorney, and approval by the client of his/her part of the settlement, is all the protection that is required for the client. In such situations the client's informed decision to accept or reject settlement (on which he/she is always free to obtain a second opinion) is sufficiently straightforward, and indeed similar to other settlement decisions clients routinely make, as to obviate any need for special rules to protect the client from his/her own lawyer. The subcommittee further recognized the possibility that carefully drawn retainer agreements may help resolve such controversies before they arise, although they alone may not dispose of the problems discussed in section (b) below. In general, the subcommittee believes that such agreements are useful, provided that they are written in a way that does not give the attorney an unfair advantage such as, for instance, by permitting him or her to withhold information about the amount of fees he/she will receive from the - defendant when the client is deciding whether to accept the settlement on the merits.

In a class action, the problems are somewhat more complex. Nonetheless, the subcommittee concluded that the Prandini prohibition was not necessary if certain protections were provided. These include notice to the class that a simultaneous settlement has occurred and full disclosure to the judge of the terms of both aspects of the settlement. If these are combined with the consideration by the judge of the attorneys fee issue at the same hearing as the merits, this should be ample protection for the class members, provided that the court focuses on the question of what is the net benefit to the class from the combination settlement agreed upon. This approach would suffice both when the settlement is for a lump sum (with a statement as to the maximum amount to be requested by the attorneys), and where the settlement provides for a fixed amount to the client and another amount to the attorneys, in which case both amounts should be treated as a package and the fairness of the settlement appraised in light of the total offer made by the defendant.

There are several reasons that the subcommittee rejected the Prandini approach, which prohibits simultaneous settlement of the merits and fees as a means of protecting class members. One is the difficulty of enforcing any such prohibition, given the lack of information available to the court as to what actually takes place during settlement discussions and the ability of the parties to communicate fee information short of “negotiating” on the subject. The subcommittee also recognized that the Prandini approach made it more difficult for defendants to settle cases because they cannot fix their total exposure, unless information about attorneys fees is supplied through the back door. Furthermore, the subcommittee also believes that the process may actually be unfair to class members since the separate settlement of attorneys fees will leave them with no interest in seeing that fees are reasonable, but not excessive, and may in fact deprive them of additional benefits if a court should decide that the amount that the defendant is willing to pay for attorneys fees is more than the plaintiffs’ attorneys are entitled to, and allows the extra portion to revert to the defendant.

One final point on this aspect of this guideline should be emphasized. Nothing should be construed as requiring a plaintiff to engage in simultaneous settlement of the merits and fees: that is a question best left to individual attorneys and their clients. The guideline simply permits such conduct on the part of a plaintiff's attorney. Moreover, even if simultaneous settlement of the two aspects does not occur, the court should remain vigilant in reviewing attorneys fees, even where the defendant does not object, since the class members will probably not participate because they have no economic stake in whether their attorneys receive the fees in full, or part reverts to the defendant.

(b) Rights of Defendants to Make Simultaneous Offers of Settlement

The subcommittee also considered whether it was unethical for a defendant to make a simultaneous offer of settlement of fees and the merits, where the effect is to drive a wedge between the plaintiff and counsel because the settlement may be very advantageous for the client and unfavorable for the attorney. In considering this issue, the subcommittee reviewed the detailed comments submitted by the Washington Council of Lawyers on this subject, but decided that its prior conclusion — that the answer depends entirely on the circumstances— was the correct view. In reaching its conclusion it recognized that the purpose of such settlement offers is not, in most cases, to create an attorney-client conflict, nor to punish or deter plaintiffs’ attorneys from taking on fee shifting cases. Generally speaking, the reason that defendants make such offers is to limit their total exposure, which could not occur if a two-stage settlement process were mandatory.

Against this background, it was agreed that there were certain situations in which the refusal of defense counsel to proceed except on a package basis was improper. For instance, in a Freedom of Information Act case, where a journalist was the plaintiff and either had a reasonably good case, or had won in the district court and the government was considering appeal, it would be improper for government counsel to offer to release the documents, only if plaintiff’s counsel agreed to waive all attorneys fees. That situation presents a grossly unfair choice to the plaintiff and his/her counsel, and permitting such offers to be made would seriously undermine the purpose of fee shifting provisions. Moreover, it would serve no end other than saving the government money which it would otherwise have to pay, yet any such saving is plainly at odds with the purpose for which the fee shifting statute was enacted.

There are cases at the other end of the spectrum, however, where it is proper for a defendant to make a lump sum settlement offer. For instance, in a Title VII case, in which the only issue is money, and the defendant believes that the plaintiff’s case is very weak, it would be proper for counsel to make an offer of a lump sum settlement in a quite modest amount. That would be true even if they were a large theoretical exposure on damages and plaintiff’s counsel had put in a significant number of hours. In the subcommittee’s view, no purpose would be served by saying that no such offer could be made, since plaintiff and his/her counsel are always free to reject it.

The key in these situations is whether the defendant’s offer is reasonable in light of all of the circumstances, including the chances of success on the merits and the risk of possible exposure in damages and attorneys fees. And in making such determinations, the legitimate interest of the fee shifting provisions must be balanced against the legitimate interest of the defendant, whether a governmental agency or private party, in making an offer which will fix liability with considerable certainty. This balancing approach applies regardless of whether the issue is phrased in terms of the right of the defendant to make a lump sum settlement offer, or the right to refuse to pay fees to the plaintiff’s attorney while providing some measure of relief to the client. In both situations, the inquiry is the same and can be decided only on a case by case basis, assessing the reasonableness of the defendant’s conduct.

Because of its conclusion that the matter cannot be decided on an across-the-board basis, the subcommittee concluded that it would be unwise to attempt to write a rule. It is for these reasons that the subcommittee rejected the views expressed in Prandini and other cases such as Lisa, F. v. Snider, 561 F.Supp. 724 (N.D.Ind.1983), and instead adopted the views expressed in White v. New Hampshire Dept. of Employ Sec., 455 U.S. 446, 453 n. 15 (1982), that the simultaneous settlement of fee disputes does not necessarily create an impermissible conflict of interest.

Because the Washington Council of Lawyers submitted such extensive comments on this aspect of the draft report, the subcommittee decided to explain why the Council’s suggestions were not adopted. The Council’s principal proposal was that we recommend a rule that would entitle the court to approve the merits part of a settlement and, despite the defendant’s refusal to agree to pay attorneys fees, to award fees nonetheless. As an alternative, the Council suggested deferring any recommendation until Moore is decided.

Apart from the merits of the Council’s proposal, it could not be adopted because it proposes a substantive rule of law (as indeed the heading on page 8 of its comments explicitly states). However, the subcommittee has no authority to make that kind of recommendation, nor would the District Court have the power to pass such a rule under its local rule-making authority. Thus, if such a standard is to be established, it will have to come from a litigated case, such as Moore, or from Congress. The subcommittee also does not believe that the pendency of Moore is a proper basis to defer issuing its guidelines, principally because it believes that interim guidance will be useful to lawyers before Moore is decided and that guidance can always be amended if the decision in Moore requires it.

      . On November 14, 1983, plaintiffs accepted an offer of judgment in the amount of one dollar plus costs against defendants John J. Mahoney and Carl E. Zentz. In their Bill of Costs against these defendants, plaintiffs sought $21,207.45, including attorneys’ fees. By order issued February 6, 1984, plaintiffs were permitted to recover $71.65 in costs. Their appeal of this order was dismissed for lack of certification under Rule 54(b), Fed.R.Civ.P. Freeman v. B & B Associates, No. 84-5148 (D.C.Cir. July 10, 1984).
      The defendants here assert that the Court’s treatment of plaintiffs' Bill of Costs amounts to a holding "that Zentz and Mahoney’s offer of judgment did not include attorneys’ fees and, as such, attorney’s fees were not awarded.” Opposition of Defendants B & B Associates and W. Lawrence Brantley to Plaintiffs’ Application for Award of Attorney’s Fees at 4 (emphasis in original). Contrary to the defendants' embellishment, however, the Court’s order does not state that attorneys’ fees were excluded from plaintiffs’ costs because not included in the offer of judgment. Mahoney and Zentz raised numerous arguments going to plaintiffs’ status as prevailing parties, and the Court’s disposition of the Bill does not foreclose the issues raised by this application.
      The record also reflects that the Clerk entered a default against defendant J. Edwards on December 22, 1983. The plaintiffs have not, however, applied for a judgment by default pursuant to Rule 55(b)(2), Fed.R.Civ.P. Accordingly, an accompanying order will require plaintiffs to advise the Court as to the status of their suit against defendant Edwards.

      . In their complaint, the plaintiffs seek attorneys’ fees for alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the District of Columbia’s Consumer Protection Procedures, D.C.Code Ann. §§ 28-3901 et seq. The plaintiffs also seek attorneys’ fees for conduct alleged to constitute "fraud in the transaction."

      . Plaintiffs' acceptance of the offer was signed by both plaintiffs and their attorney.

      . The fee agreement itself is not in evidence. It is described in an affidavit annexed to the Memorandum Filed in Support of the Fee Petition.

      . Greene v. Gilbraltar Mortgage Investment Corp., 529 F.Supp. 186 (D.D.C.1981).

      . Defendants also sought extensive discovery from plaintiffs, which plaintiffs resisted.

      . The relevant portion of the Final Subcommittee Report is annexed to this opinion as Exhibit A.

      . In 1982 the Chief Judge of the Court of Appeals for the District of Columbia appointed a committee of judges and lawyers to study and report on some concerns of the Bar about the courts’ "administration of attorney fee claims.” A subcommittee consisting of the lawyer members of the committee has referred it to the two courts for consideration and such action as they deem to be indicated.

      . This ruling does not constitute approval of plaintiffs’ argument that the offer of judgment was fatally defective to the extent that it purported to exclude attorney’s fees. Plaintiffs observe that Rule 68 permits a party to "offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued." Fed.R.Civ.P. 68 (emphasis added.) Under the Rule’s language, costs are not subject to settlement. Plaintiffs argue that attorney’s fees should be treated as costs for purposes of Rule 68, and that any attempt to exclude such costs from a Rule 68 offer of judgment is impermissible. In support of this proposition, plaintiffs rely primarily on Scheriff v. Beck, 452 F.Supp. 1254 (D.Colo.1978), where the court held that "Rule 68 requires that an offer of judgment include payment of costs then accrued. In civil rights actions attorney’s fees can constitute part of the costs. Rule 68 does not permit an offeror to choose which accrued costs he is willing to pay." Id. at 1260 (emphasis added). As a result, the court concluded that an offer which excluded attorney’s fees was "fatally defective.” Id. The effect of this holding is limited to the civil rights statutes, which expressly state that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988; see also 42 U.S.C. § 2000e-5(k); Delta Air Lines, Inc. v. August, 450 U.S. 346, 363, 101 S.Ct. 1146, 1155, 67 L.Ed.2d 287 (1981) (Powell, J., concurring in the result) ("In Title VII cases, the scope of ‘costs’ is defined in the statute itself.”). In contrast, the Truth-in-Lending statute draws a distinction, permitting recovery of "the costs of the action, together with a reasonable attorney's fee as determined by the court.” 15 U.S.C. § 1640(a)(3) (emphasis added). Similarly, the District of Columbia’s Consumer Protection Procedures do not indicate that attorneys’ fees are to be treated as costs. D.C.Code Ann. § 28-3905(k)(1). For purposes of plaintiffs' claims, therefore, costs do not include attorney’s fees. As a result, the defendants’ offer of judgment is not defective ab initio under Rule 68.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    INTAMIN, INC., Plaintiff, v. FIGLEY-WRIGHT CONTRACTORS, INC., et al., Defendants.
    No. 83 C 9387.
    United States District Court, N.D. Illinois, E.D.
    Sept. 20, 1984.
    Carlton Fisher, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, 111., for plaintiff.
    Thomas F. Tobin, Michael J. Wagner, Baker & McKenzie, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

James Figley (“Figley”) and Leonard Wright (“Wright”) move for reconsideration of this Court’s August 27, 1984 oral bench ruling denying their motion to dismiss for want of personal jurisdiction. For the reasons briefly stated in this memorandum opinion and order (and more extensively outlined in Club Assistance Program, Inc. v. Zuckerman, 594 F.Supp. 341), their motion is denied.

First, the fact that the guaranty in O’Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir.1971) contained its own stipulation for applicability of Illinois law, while the guaranty here rather guaranteed obligations under a contract that contained a like stipulation, is a distinction without a difference. There is a tendency in these long-arm eases to announce the end result of personal jurisdiction vel non as a substitute for reasoning. And as the remaining discussion will reflect, reasoning supports jurisdiction here.

Second, reliance on the place of “execution” of the guaranty — where the last pen was put to paper — employs the same kind of wooden and artificial recital of facts as a substitute for analysis. Again the issue should be decided in terms of the meaningful relationships (or lack of relationships) of the guarantors with Illinois.

When this Court ruled initially, it was of course well aware of its colleague Judge Hart’s thoughtful decision in Northern Trust Company v. Dillon, 558 F.Supp. 1118 (N.D.Ill.1983), including his reliance on Telco Leasing v. Marshall County Hospital, 586 F.2d 49 (7th Cir.1978). But the relevant contrasts between those cases and this one are dramatic. Most significantly, in Northern Trust the guaranty by the non-resident was of a contract (an equipment lease of a computer system), and in Telco the defendant Hospital had signed a contract (a lease of medical equipment), each to be performed wholly outside Illinois. In each ease the only way Illinois even arguably stood to be affected was by a potential economic impact on the Illinois-lessor company in case of nonpayment of the principal obligation. In this case, though, the guaranty was of performance of a wholly Illinois contract — construction of a multi-million dollar permanent structure in this state. Little wonder Illinois law was chosen by the parties to be applicable.

Just last week this Court had occasion to essay reconciliation of the welter of Illinois cases in this area of law. Club Assistance Program, Inc. v. Zuckerman, (1984) 594 F.Supp. 341. Club Assistance found the common thread of reason that runs through the decisions is whether the conduct of the party now challenging personal jurisdiction had been intended to affect interests in Illinois (in which case jurisdiction would lie) or not (in which case it would not).

Here Figley and Wright executed a personal guaranty as a specific inducement to the other contracting party to award Figley’s and Wright’s own corporation a major contract (construction of a $4 million roller coaster), to be carried out entirely in this state. As the corporate shareholders, directors and officers, Figley and Wright stood to derive the entire benefit of that bargain — the large fee for services in construction of the project. It would be difficult to characterize their conduct otherwise than as directly intended to affect Illinois rights — or to repeat the eonclusory phrase that permeates O’Hare and so many of the other decisions in this field, their own action to obtain the Illinois contract for their corporation (a contract governed by Illinois law) was “conduct by which [they] may be said to have invoked the benefits and protections of the law of the forum.” In the equally familiar language of World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) Figley and Wright surely could “reasonably anticipate being haled into court” here if their corporation breached — necessarily in Illinois, for its performance took place only here — the obligation they had guaranteed.

Figley’s and Wright’s motion for reconsideration is denied. They still remain in the case.

      . Figley and Wright complain because this Court cut off the proposed briefing schedule by its bench ruling “without the benefit of fully airing the issues raised in the motion" (current Mem. 3). That is wholly misleading. This Court was then in receipt of Figley's and Wright’s own supporting memorandum (the first in the usual three-brief schedule), which cited none of the cases now said by them to be applicable. This Court read all of the authorities Figley and Wright had advanced on their own behalf. It found none of those authorities persuasive, let alone controlling, in the face of the highly parallel O’Hare case of which this Court was aware. Accordingly it declined to require Intamin, Inc. to respond to the Figley and Wright memorandum.

      . Though this Court was not familiar with Judge Gordon’s brief opinion in First Wisconsin National Bank of Milwaukee v. Akin, 403 F.Supp. 1244 (E.D.Wis.1975), that case posed a situation conceptually identical to Northern Trust and Telco. In First Wisconsin the only assertedly Wisconsin-related “activity” was a borrowing from a Wisconsin bank, with the funds being paid to the borrower in another state. Again the only impact in Wisconsin was economic, and the only real activity in Wisconsin was by the lender — not by the borrower whose debt was guaranteed. In the latter respect Northern Trust, Telco and First Wisconsin all bear a marked analytical resemblance to Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 597 F.2d 596 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980), where our Court of Appeals rejected personal jurisdiction.

      . Indeed this case has much more in significant Illinois contacts than did O’Hare (where the principal obligor had also leased equipment — an airplane — from an Illinois lessor for out-of-state use), and the result here follows a fortiori from O’Hare and the added discussion in the text here and in Club Assistance.

      . It is worth noting that in Northern Trust (the only case posing the problem) the conclusion as to personal jurisdiction over the guarantors was identical to that as to jurisdiction over the obligors. None of the cases — O’Hare, Northern Trust, Telco or First Wisconsin — reached the result urged by Figley and Wright, under which the contract would be determined to have enough Illinois contacts to keep the principal obligor in court, but the guaranty would be found to lack sufficient Illinois contacts to justify jurisdiction over the guarantor.


text:
    INTAMIN, INC., Plaintiff, v. FIGLEY-WRIGHT CONTRACTORS, INC., et al., Defendants.
    No. 83 C 9387.
    United States District Court, N.D. Illinois, E.D.
    Sept. 20, 1984.

      Carlton Fisher, Hinshaw, Culbertson, Moelmann, Hoban & Fuller; Chicago, 111., for plaintiff.
    Thomas F. Tobin, Michael J. Wagner, Baker & McKenzie, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Intamin, Inc. (“Intamin”) has sued Figley-Wright Contractors, Inc. (“FigleyWright”) as principal and James Figley and Leonard Wright as guarantors in a five-count Complaint, Counts II and IV of which sound in the Uniform Commercial Code (“UCC”). Defendants have moved to dismiss Counts II and IV under Fed.R. Civ.P. (“Rule”) 12(b)(6) as failing to state a cause of action. For the reasons briefly stated in this memorandum opinion and order, the motion is denied.

Absent a contractual choice of law provision, the test for UCC applicability under Illinois law is whether the dominant aspect of a mixed goods and services contract is its sale-of-goods component or its services component. If it is the former, the UCC applies to the contract. WICO Corp. v. Willis Industries, 567 F.Supp. 352, 355 (N.D.Ill.1983) and authorities cited there. Under that standard the UCC would not apply here, for Figley-Wright rendered only services — though its services were to “perform all Work required to construct” a tangible product (a custom-built roller coaster) and its compensation was measured in part by the cost of that construction.

But the parties here deliberately changed the ground rules: They chose to include as Paragraph 14(d) of the Intamin-FigleyWright contract a specific incorporation of the UCC:

By agreement of the parties hereto, in the event that any action, suit or proceeding of any kind be brought hereunder, the terms and provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of Illinois and the Uniform Commercial Code of that State except that to the extent any term or provision(s) of this Agreement vary, alter or contradict the Uniform Commercial Code, the terms and/or provisions of this Agreement shall prevail.

Figley-Wright responds in its counsel’s September 13 letter “that parties may not agree to be governed by a substantive body of law which does not bear an appropriate relationship to the underlying transaction.” For that proposition it cites R & L Grain Co. v. Chicago Eastern Corp., 531 F.Supp. 201, 206 (N.D.Ill.1981); Mell v. Goodbody & Co., 10 Ill.App.3d 809, 812-13, 295 N.E.2d 97, 99 (1st Dist.1973); In re Automated Bookbinding Services, Inc., 336 F.Supp. 1128, 1132 (D.Md.1972); Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316, 322-23 (1975); and Herington Livestock Auction Co. v. Verschoor, 179 N.W.2d 491, 493-94 (Iowa 1970).

There is good reason to be suspicious of the contention stated as baldly as Figley-Wright puts it. Where two commercial concerns enter into a major contract (not one of adhesion, but representing at least substantially equal bargaining power), no reason would appear to compel the disregard of their arms-length bargain that a particular law applied to their agreements. Figley-Wright has given no hint of, nor does this Court perceive, any strong public policy that would override the fundamental notion of freedom of contract. Why should such parties not have the right to define their own legal standards, and to look to a court to honor that choice if one of the parties breaks its promise?

None of the five cases cited by Figley-Wright even purports to decide that question. Three of them (Automated Bookbinding, Intraworld Industries and Herington Livestock) deal with the very different (and obvious) principle that a contractual choice of law by two parties cannot automatically bind third parties Such as creditors. As for the other two (R & L Grain and Mell), they do not announce a rule of law, but instead simply apply UCC § 1-105(1):

Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement this Act applies to transactions bearing an appropriate relation to this state.

None of the cases therefore deals with whether parties could choose a jurisdiction not having an “appropriate relation” to their transaction and would then be bound — as between themselves — by that choice.

On that score Figley-Wright’s counsel were duty-bound to opposing counsel and this Court to indicate that the UCC itself indicates an affirmative answer to that very question. As the official comment to UCC § 1-105 states (emphasis added):

In general, the test of “reasonable relation” is similar to that laid down by the Supreme Court in Seeman v. Philadelphia Warehouse Co., 274 U.S. 403, 47 S.Ct. 626, 71 L.Ed. 1123 (1927). Ordinarily the law chosen must be that of a jurisdiction where a significant enough portion of the making or performance of the contract is to occur or occurs. But an agreement as to choice of law may sometimes take effect as a shorthand expression of the intent of the parties as to matters governed by their agreement, even though the transaction has no significant contact with the jurisdiction chosen.

In plain English that would permit the parties to apply the Illinois UCC even without a “reasonable relation” to their deal.

But this Court need not decide that interesting question for the current motion. It would be wholly academic here. Though it is true Figley-Wright was rendering services, the notion that the “transaction [did not] bear [] a reasonable relation to this state” (the Section 1-105(1) standard) is absurd. That is conclusively demonstrated both by common sense (including the common meaning of the quoted statutory language) and by a mere reading of the portion of the quoted official comment immediately preceding the underscored part. All of the “performance of the contract” — the construction Figley-Wright contracted to supervise — occurred in Illinois. And if that multi-million dollar activity does not bear a “reasonable relation” to this state it is difficult to conceive what could — or to look at the obverse side of the coin, to see what other state might have a more “reasonable relation.”

Thus whether viewed in freedom-of-eon-tract terms or (less accurately as a conceptual matter) as a question of statutory construction, Figley-Wright’s Rule 12(b)(6) motion targeting Complaint Counts II and IV is wholly without foundation. Defendants are ordered to answer both those counts on or before October 1,1984. Accordingly the status call now set for September 25 is reset to October 23, 1984 at 9 a.m.


author: JOHN GARRETT PENN, District Judge.

text:
    AMERICAN POSTAL WORKERS UNION, Plaintiff, v. UNITED STATES POSTAL SERVICE and William F. Bolger, Defendants.
    Civ. A. No. 84-270.
    United States District Court, District of Columbia.
    Sept. 25, 1984.

      Anton G. Hajjar, New York, Darryl Anderson, Washington, D.C., for plaintiff.
    Mitchell Berger, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION

JOHN GARRETT PENN, District Judge.

This is an action brought by the American Postal Workers Union, AFL-CIO (APWU), to have declared unconstitutional and to enjoin the enforcement of certain United States Postal Service (USPS) “guidelines” which restrict the use of postal premises for voter registration and polling. APWU brings this action on its own behalf, on behalf of its members, and on behalf of postal employees represented by it. The matter is before the Court on cross-motions for summary judgment.

I

Prior to this election year, locals affiliated with the APWU had, either with the permission or acquiescence of local postmasters , registered voters on postal premises. Although by contract and regulation APWU was not granted a right of access to postal premises for this purpose, the fact remains that APWU, through its affiliated locals, had been permitted to register voters on postal premises at certain locations for sometime.

In this election year APWU once again planned to register postal employees and the public on postal premises. However, on December 1, 1983, the USPS issued a set of “guidelines” which, inter alia, prohibited all postal employees and “any organization which participate^] or intervene[s] in [a] political campaign on behalf of [a] candidate” from registering voters on postal premises. See Postal Bulletin 21434, 12-1-83, at 9. Since the issuance of the guidelines, local postmasters have prohibited APWU from registering voters on postal premises on the ground that the APWU “participate[s] or intervene^] in [a] political campaign on behalf of [a] candidate” within the meaning of the guidelines .

On January 24, 1984, APWU filed this action challenging Sections (A)(1) and (A)(3) of the guidelines. Plaintiff seeks a declaratory judgment that the aforementioned provisions violate the First Amendment to the United States Constitution, and seeks an injunction against their implementation and enforcement. The Court will examine each of these provisions in turn.

II

1. Section (A)(1)

Section (A)(1) provides that a postmaster may approve voter registration requests only if the registration is

conducted by government agencies or nonprofit civic leagues or organizations that operate for the promotion of social welfare but do not participate or intervene in any political campaign on behalf of any candidate for any public office.

Postal Bulletin 21434, 12-1-83, at 9. As noted above, USPS, through its local postmasters, has denied APWU and its affiliated locals access to postal premises for the purpose of registering voters, on the grounds that APWU is an organization that “participate[s] or intervene[s] in [a] political campaign on behalf of [a] candidate for [a] public office”. APWU challenges this provision both as written and as applied to them, .

a. Section (A)(1) as written

The case which controls the Court’s review of Section (A)(1) is Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also NAACP v. Devine, 727 F.2d 1247 (D.C.Cir.1984), and Ysleta Fed. of Teachers v. Ysleta Independent School District, 720 F.2d 1429 (5th Cir.1983). Under Perry, a court’s first task is to determine whether the “property” in question is a “traditional public forum”, “limited public forum”, or “private forum” , for “[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue”. Perry 460 U.S. at 44, 103 S.Ct. at 954.

“Traditional public forums” are “places which by long tradition or by government fiat have been devoted to assembly and debate”. Id. at 45,103 S.Ct. at 954. The most often cited examples are “streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions’ ”. Id. (citation omitted). No evidence has been submitted which would support a conclusion that post offices are traditional public forums .

The second category of public property, “limited public forums”, consists of “public property which the State has opened for use by the public as a place for expressive activity”. Id. This is property which was not initially created or designated as a public forum but which has, in essence, been transformed into a public forum because the State has opened it to the public as a place for expressive activity. Id. at 45-47, 103 S.Ct. at 954-956. As is discussed more fully below, the State need not open the facility to the public at large or for all expressive activity for the conversion to a limited public forum to occur. Although Perry suggests that this is the clearest case of a limited public forum, “selective access”, either in terms of the activity permitted, or the groups admitted, may at times suffice. The government need not retain the “open” character of the facility indefinitely just because it has at some time opened it to the public. Id. at 46,103 S.Ct. at 955. However, as long as the facility does remain open to the public for expressive activity, the standards applicable to public forums apply. Id.

Both the facts and language of Perry make it clear that a limited public forum is not easily created. As noted above, there are two principal ways that a limited public forum may result. One way is where there is “indiscriminate use by the general public [for the desired activity]”, where “permission [is] granted as a matter of course to all who seek [access for the purpose at issue]”. Id. at 47, 103 S.Ct. at 956. This does not describe the instant case. A second way is through “selective access”. This is where access to the facility is not granted to the public at large, but to select groups or for select expressive purposes. See Perry at 46-48 and n. 7, 103 S.Ct. at 955-56 and n. 7. Perry indicates, however, that selective access, in and of itself, will not necessarily (and not often) suffice. In Perry a union sought access to a school mail system. The Supreme Court held that periodic use of the mail system by private non-school-connected groups was insufficient to create a limited public forum, id. at 47, 103 S.Ct. at 956; that regular access by other organizations, including another union, would not suffice, id.; and that prior access by the plaintiff was not enough. Id. at 48, 103 S.Ct. at 956. Moreover, even when selective access does create a limited public forum, the constitutional right of access extends only to other entities of similar character. Id.

It cannot be gainsaid that USPS permits selective access to its premises for the purpose of registering voters. Access for this purpose is granted to “government agencies or nonprofit civic leagues or organizations that operate for the promotion of social welfare but do not participate or intervene in any political campaign on behalf of any candidate for any public office”. Section (A)(1). Yet it is the Court’s opinion that “[t]his type of selective access does not transform [the] government property into a public forum” anymore than it did in Perry. Id. at 47, 103 S.Ct. at 956.

More importantly, even if the selective access in this case has converted postal premises into limited public forums, they are limited public forums only for entities similar to those being granted access. APWU is not a “government agencfy] or nonprofit civil leagu[e] or organizatio[n] that operate[s] for the promotion of social welfare”. Section (A)(1). Nor is APWU an organization that does “not participate or intervene in any political campaign on behalf of any candidate for any political office”. Id. Accordingly, APWU’s right of access to postal premises, if any, is not governed by the standards applicable to a limited public forum.

What remains is the conclusion that postal premises are, for purposes of First Amendment-access regulation analysis, “nonpublic” or “private” forums. Regulations governing access to this type of forum are scrutinized under different standards than regulations governing access to public forums. In addition to time, place, and manner regulations, the government may reserve the property for its intended purposes, communicative or otherwise, “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view”. Id. at 46, 103 S.Ct. at 955. The government retains

the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.

Id. at 49, 103 S.Ct. at 957. The crux of the standard is that “[t]he ... policy need only rationally further a legitimate state purpose”. Id. at 54, 103 S.Ct. at 959. In addition, in determining the reasonableness of this type of regulation, a court may consider whether there are “substantial alternative channels that remain open” for communication. Id. at 53, 103 S.Ct. at 959. Guided by these standards, the Court will proceed to analyze the validity of Section (A)(1). '

USPS justifies its access policy on the following grounds. As a general matter, applicable to all the guidelines, USPS believes that non-postal activity should not be permitted where it could lead to the perception or appearance that the Postal Service is involved in the political process or is biased in the performance of its mission. Affidavit of William B. Thomas (Thomas Aff.) at ¶ 6. It is crucial that the public trust the Postal Service to deliver all communications and to perform other services without bias or favoritism. Id. at ¶ 12. The restriction in Section (A)(1) is designed to prevent the appearance or public perception that the Postal Service has endorsed or approved a candidate and is not impartial. Id. at ¶ 14.

Avoidance of the ’ appearance that the government is partisan or biased has repeatedly been held by the Supreme Court to be a legitimate and important governmental objective. See, e.g., U.S. v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 1710, 75 L.Ed.2d 736 (1983) (“we do not discount the importance of this proffered purpose [that it should not appear to the public that the Supreme Court is subject to outside influence]”). In U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973), the Court held

it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

See also Greer v. Spock, 424 U.S. 828, 839, 96 S.Ct. 1211, 1218, 47 L.Ed.2d 505 (1976) (approving the goal of insulating the military from “both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates”).

Not only is the proffered justification a legitimate goal in the abstract, it is legitimate in this case “in light of the purpose which the forum at issue serves”. Perry 460 U.S. at 49, 103 S.Ct. at 957. The Postal Service is perhaps the most pervasive of all government agencies. Its independence from the political process and freedom from the appearance of being involved in the political process is critical to its effective operation. See Thomas Aff. at ¶¶ 15-13; see also Letter Carriers, supra, 413 U.S. at 565, 93 S.Ct. at 2890 (passages referring to the necessity of preserving “confidence in the system” and “reduepng] the hazards to fair and effective government”), Greer v. Spock, supra, 424 U.S. at 839, 96 S.Ct. at 1218, and U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 133, 101 S.Ct. 2676, 2687, 69 L.Ed.2d 517 (1981).

One might ask if there is not a less restrictive method of achieving the same goal, e.g., requiring the union to clearly disclaim any connection with or support from the Postal Service, or requiring that the activity be conducted in a strictly nonpartisan manner. Aside from the question of the effectiveness of such alternatives, there are two answers to the question. The first is that, as a nonpublic forum, the government is not required to employ the least restrictive alternative. The opinion in Perry was utterly devoid of any such analysis. The second answer is that it is this Court’s considered opinion that the United States Postal Service may legitimately restrict access to its premises, for the purpose of registering voters, to clearly nonpartisan organizations. USPS need not adopt regulations which would inevitably entail significant hair-splitting, gray areas, and substantial policing; it need not embroil itself in the problems of making sure that an otherwise partisan organization will conduct its voter registration — a recognized tool of partisan campaigns — in a strictly nonpartisan manner.

The Court’s conclusion that Section (A)(1) is reasonable is buttressed by the fact that substantial alternative avenues for registering voters remain open to the APWU or any other restricted organization . APWU may enlist the services of a non-restricted organization to register voters on premises; the union may urge its members to register through its publications ; and it may register employees and the public off postal premises, e.g., at union meeting places, malls, or outside public libraries ,.

In this case plaintiff is demanding the right to register voters “whenever and however and wherever they please”. Greer v. Spock, supra, 424 U.S. at 836, 96 S.Ct. at 1216, quoting Adderly v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); U.S. Postal Service v. Greenburgh Civic Assns., supra, 453 U.S. at 133, 101 S.Ct. at 2687. Plaintiff does not have this right. Id. Substantial alternafive avenues for registering voters exist and Section (A)(1) is more than rational. Section (A)(1) is constitutional, under the First Amendment, as written,

b. Section (A)(1) as applied

Plaintiff also argues that Section (A)(1)’s prohibition is unconstitutional as applied to it. Plaintiff asserts that (a) it does not “participate or intervene in any political campaign on behalf of any candidate for any public office”; (b) even assuming that it has endorsed a candidate or otherwise participated in the campaign, that does not mean that its individual union members identify themselves with the organization’s partisan goals; and (c) just because the union may be partisan does not mean that it cannot register voters in a nonpartisan fashion. See Plf. Mem. at 13-15.

With regard to the first argument, the government has submitted more than ample evidence to support the conclusion that APWU does “participate” in this election on behalf of the Democratic presidential candidate. See Defts. Suppl. Mat. Facts at ¶¶ 47-54 (referring to statements in APWU publication). Statements in the APWU publication, The American Postal Worker, indicate that it is a highly politicized organization with the partisan goal of electing a pro-labor Democratic president of the United States. See id. The publications demonstrate that voter registration is viewed by APWU as a key method of achieving this goal. Id. at ¶¶ 48, 53, and 54. APWU is “affiliated” with the AFLCIO, which unequivocally endorsed Mr. Móndale as the Democratic nominee, and the APWU participated in the AFL-CIO nominating convention to the extent of casting votes for Messrs. Móndale and Glenn. See Plf.Mem. at 2. For APWU to assert that they are not participating in this election on behalf of a candidate is to ignore the plain meaning of the word “participate” and to construe too narrowly the words “on behalf of”. APWU has urged its members, through union literature, to undertake activities in support of the labor endorsed Democratic candidate. Defts. Suppl. Mat. Facts at ¶¶ 46-54.

The Court rejects plaintiff’s other two arguments as well. As for the second argument, (A)(1) is only addressed to organizations as a whole; as an organization, the evidence supports the conclusion that APWU is participating in this election in a partisan manner. With regard to the third argument, again (A)(1) does not focus on the particular activity, but rather on the character of the organization. For the reasons discussed above, the Court finds this method of regulation constitutionally permissible in this case .

The application of Section (A)(1) to prohibit the APWU from registering voters on postal premises is lawful.

2. Section (A)(3)

Section (A)(3) provides that
[pjostal employees must not participate in any voter registration activity conducted on Postal Service premises.

Postal Bulletin 21434, 12-1-83, at 9. The first step in the Court’s analysis is to flush out exactly what the regulation does and does not prohibit. Section (A)(3) prohibits all postal employees from conducting any kind of voter registration, regardless of whether the activity is partisan or nonpartisan, on postal premises only. The regulation does not prevent postal employees from registering voters off premises, nor from urging their co-workers to vote, to register to vote, to vote a certain way, or to register with a particular party, on postal premises. Defts. Mem. at 4-5.

Thus, Section (A)(3) does not restrict the expression contained in the activity of registering voters on postal premises; it only restricts the activity. Off postal premises, Section (A)(3) restricts neither the activity nor the expression. Properly viewed, the regulation is in fact a very limited one in the context of the First Amendment. Its restrictions on expression, debate, and the interchange of ideas — the core values which the First Amendment seeks to protect — are realistically quite minimal if not nonexistent. Accordingly, at the outset this Court would question whether the First Amendment is even implicated here.

Assuming for the purposes of discussion that the First Amendment is implicated, the next step in the Court’s analysis is to determine the appropriate standard of review. Plaintiff argues that the standards enunciated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) govern. The government disagrees , arguing that Pickering dealt with speech-expression only, and therefore must be restricted to cases involving the regulation of speech-expression, as opposed to conduct. While the government is correct that Pickering was primarily concerned with a restriction on speech, and that the holding of the case was couched in terms of speech, the Supreme Court appears to have extended the holding of Pickering to cover conduct too. In Letter Carriers, supra, 413 U.S. at 564, 93 S.Ct. at 2889, the Court stated

[a]s the Court held in Pickering v. Board of Education, 391 U.S. 563, 568 [88 S.Ct. 1731, 1734, 20 L.Ed.2d 811] (1968), the government has an interest in regulating the conduct and the “speech of its employees that differfs] significantly from those it possesses in connection with regulation of the speech of the citizenry in general”, (emphasis added).

Although this Court has other reservations about the applicability of Pickering to Section (A)(3), the case cannot be distinguished for the reason suggested by the government. Without deciding the issue, the Court will apply Pickering as plaintiff urges. For even under the Pickering analysis, the Court finds the regulation to be constitutional.

In Pickering, 391 U.S. at 568, 88 S.Ct. at 1734, the Court held that

[t]he problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.

Accord, Letter Carriers, supra, 413 U.S. at 564, 93 S.Ct. at 2889. The government has stated that Section (A)(3) was promulgated (1) to avoid any possible appearance that the Postal Service is involved, through its employees, in the political process, Thomas Aff. at ¶¶ 15, 16; and (2) to prevent coercion or the appearance of coercion of other postal employees who might feel pressured either to register against their wishes, or to register a certain way. Id. at ¶ 16.

The Supreme Court has held these justifications to be valid in other First Amendment cases. See, e.g., U.S. v. Grace, supra, 103 S.Ct. at 1710 (avoidance of appearance of partisanship valid justification); Letter Carriers, supra, 413 U.S. at 565, 93 S.Ct. at 2890 (same); and id. at 566, 93 S.Ct. at 2890 (avoidance of coercion valid justification). The potential for coercion of fellow postal workers is especially real in this case. As discussed above, postal employees remain free, at work, to express their private, partisan opinions and to urge their co-workers to vote or register in a particular way. If postal employees were also permitted to register their coworkers at work, there would be instantaneous combustion: as a private citizen the employee could urge his co-workers to vote for candidate X, while under (A)(3) he could register the co-workers with candidate X’s party. The result would be coercion and partisan registration.

Moreover, there is already some evidence that previous registration drives in certain locales were not conducted in an altogether benign fashion. In the New York Metro area the registration form used by the APWU has a space for marking party affiliation, and the forms are returnable to APWU officials instead of directly to a Board of Election. By this method, APWU could find out what party a worker is affiliated with and, if not “politically correct”, exert pressure on the worker to change.

Finally, as the Supreme Court has recognized, coercion may be tacit as well as express and still be real. See Letter Carriers, supra, 413 U.S. at 566, 93 S.Ct. at 2890. The suggestion that postal employees and union members, some of whom might hold relatively high positions in the Postal Service or the union, could register co-workers and fellow union members in a nonpartisan fashion immediately calls to mind the scene, familiar to all former enlisted men, of the army pay line with the paymaster handing out checks, followed by the Red Cross representative collecting donations, followed by the staff sergeant silently watching who gave and who did not. The USPS’s concern about coercion at the work place seems entirely reasonable in this case.

Since postal workers remain free to register voters (and to be registered) off postal premises, APWU’s desire to be able to do this on premises is not sufficient to outweigh the government’s interests in this case. Accordingly, the Court finds Section (A)(3) constitutional.

HI

For the foregoing reasons defendants’ motion for summary judgment is granted, plaintiff’s motion for summary judgment is denied, and this case is dismissed.

An appropriate order has been issued.

APPENDIX A

POSTAL BULLETIN

21434, 12-1-83, Page 9

USE OF POSTAL PREMISES FOR VOTER REGISTRATION AND POLLING

Postmasters approached regarding the use of postal premises for registration and polling purposes should use the following guidelines:

A. Voter Registration. A postmaster may approve voter registration requests provided all the following conditions are met.

(1) The registration must be conducted by government agencies or nonprofit civic leagues or organizations that operate for the promotion of social welfare but do not participate or intervene in any political campaign on behalf of any candidate for any public office.

(2) Absolutely no partisan or political literature will be available, displayed, or handed out. This includes photographs or likenesses and cartoons of elected officials and candidates for public office.

(3) Postal employees must not participate in any voter registration activity conducted on Postal Service premises.

(4) The registration must not interfere with the conduct of usual postal business, postal customers, or postal operations.

(5) The organization will provide and be responsible for any equipment and supplies.

(6) Contributions may not be solicited.

(7) Access to the workroom floor is prohibited.

(8) Voter registration activities will not become permanent, but will be limited to an appropriate period before an election.

B. Polling. Approval to use postal premises as a polling place is given by the Postmaster General or his designee. A request to use a postal facility will be considered only if the facility is the only reasonable available place for voting in the area and the following conditions are met.

(1) The facility must be used as is and must not be materially altered to accommodate machines, voters or workers.

(2) The Postal Service will not provide any assistance in the installation or removal of items needed for voting or in the polling process itself.

(3) Voting must not interfere with normal postal business.

(4) Voter entrances and exits must be arranged to ensure the security of the mails.

(5) Workroom floor space may not be used for voting.

(6) Local law enforcement officials must agree in advance to enforce Postal Service regulations governing conduct on postal premises and all applicable state and local laws during the voting.

(7) The state or local government must agree in advance to reimburse any costs incurred by the Postal Service for additional security, utilities, or building operations necessary to allow the use of the facility for voting.

(8) There must be an absolute prohibition against the display or distribution of any political literature, badges, insignia, or posters on Postal Service premises, including parking areas.

Submit request to Headquarters, Delivery Services Department, Office of Delivery & Retail Operations through the Regional Postmaster General no fewer than 60 days before the election. A request must include complete details addressing each of the above conditions and a statement that there are suitable non-postal facilities available.

These procedures are intended to provide for the use of postal premises where they are truly needed for voting and, at the same time, to ensure that there is no disruption of postal services. — Delivery Services Dept, 12-1-83.

UNIFORM PROGRAM — LICENSED VENDOR LISTING

Each of the following uniform vendors has received a vendor’s license since distribution of Publication 136, Licensed Vendor Listing. These lists must be posted where they are readily available for employees to read.

Army Navy Store 322 N. Higgins Missoula Avenue MT 59802

Blue Knight Uniforms 217 Atlantic Beachwood City Blvd. NJ 08722

California Footwear 3048 Rolison Redwood Road City CA 94063

Cesar’s Shoe World

1924 E. Sahara Las Vegas NV 89104

E&E Uniform Supply 402 Main Carmine Street TX 78939

Louis Weisz Shops 5620 N. Broad Philadelphia Street PA 19141

Military Surplus of South Florida 18651 S.W. 107th Avenue Miami FL 33157

North Fork 417 Delaware Street Kansas City

Red Wing Shoe Store 5208 Atdine Mail Route

The Bootery 1400 Allentown Road Lima OH 45805

•Labor Relations Dept. 12-1-83.

      . Plaintiff APWU is an unincorporated association of postal employees. It is the exclusive collective bargaining representative of over 300,000 postal workers. Complaint at ¶ 5.

      . See, e.g., Declaration of Clarence E. Shepherd (Shepherd Deck) at ¶ 2; Declaration of Roy Braunstein (Braunstein Deck) at ¶ 3; Declaration of Roland L. Carter (Carter Deck) at ¶ 4; and Declaration of Eleanor Bailey (Bailey Deck) at ¶2.

      . The following list, found in Plaintiffs Statement of Material Facts (Plf. Mat. Facts) at ¶ 3, gives examples of the cities, the areas of the post offices, and the duration of prior voter registration drives conducted by APWU locals on postal premises:
      Local Place Year
      Seattle Swing rooms 1982-1983
      Cleveland Cafeteria 1982
      San Francisco Swing rooms 1980-1982
      Lobby 1980-1982
      Local Place Year
      N.Y. Metro Lobby 1973-1977
      Swing rooms 1977-1983
      Houston Swing rooms & 1980-1983 Cafeteria
      San Jose, CA Swing rooms 1982
      Detroit Swing rooms & * 1982 Stewards' areas

        See also: Carter Deck at ¶¶ 3-5; Braunstein Deck at ¶ 3; Bailey Deck at ¶¶ 2-3; and Shepherd Deck at ¶¶ 1-2.

      . See Articles 23 and 31 of the contract between the APWU and the USPS, and the Postal Service Employee & Labor Relations Manual § 661.52. These provisions indicate that APWU, as an institution, has been granted access to postal premises only for very limited and circumscribed purposes relating to union business. Voter registration is not such a purpose. For the weight to be given to these provisions see the Supreme Court’s consideration of similar provisions in Perry 460 U.S. 37, at 40-51 and nn. 3, 11, 103 S.Ct. 948, at 952-958 and nn. 3, 11, 74 L.Ed.2d 794.

      . See supra note 3.

      . See, e.g., Plf. Mat. Facts at ¶¶ 4, 28, 32, 33; Carter Decl. at ¶¶ 6-7; Braunstein Decl. at ¶ 3; Shepherd Decl. at ¶ 4.

      . These guidelines were allegedly promulgated in response (and in opposition) to legislative activity in Congress. See Defendants' Statement of Material Facts (Defts. Mat. Facts) at ¶¶ 1-2; and Letter from W. Allen Sanders to Chairman Ford, Exhibit 1, Defts. Mat. Facts.

      . A copy of the guidelines is provided at Appendix A.

      . Defendants state that the guidelines (or regulations) were promulgated under the general rule-making grant of 39 U.S.C. § 401. See Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (Defts. Mem.) at 20; and Defendants’ Memorandum in Opposition to Plaintiffs Cross-Motion for Summary Judgment (Defts. Opp.) at 7. Although the provisions are entitled "guidelines”, it is evident from their application and from the government’s papers (note description of provisions as "regulations” throughout Defts. Mat. Facts) that these guidelines have the force and effect of USPS regulations. See also Defts. Mem. at 9.

      . See Plf. Mat. Facts at ¶¶ 6-8, 11; see also Bailey Decl. at ¶ 4; Shepherd Decl. at ¶ 8; Braunstein Decl. at ¶ 3; Declaration of Ronald Miera (Miera Decl.) at ¶ 5.

      . Plaintiff originally challenged the application of Section (B)(8) as well, but the Court has been informed by plaintiff that its dispute with USPS over this provision has been resolved.

      . See supra note 10 and accompanying text.

      . For the basis of this conclusion, see infra p. 1360.

      . While APWU has not phrased its challenge in precisely this way (i.e. “both as written and as applied”) this is how its arguments break down.

      . The government asserts that APWU lacks standing to raise this issue since APWU will not admit that it has endorsed a candidate for president of the United States. Defts. Mem. at 13. The government’s argument is that if APWU has not endorsed a candidate for president, it is not subject to the restriction contained in (A)(1); and if it is not subject to (A)(l)’s restriction it has not suffered injury-in-fact sufficient to confer standing. Id. The Court rejects this argument. As noted above, see supra note 10 and accompanying text, APWU has been denied permission by USPS officials to register voters on postal premises on the ground that APWU is a prohibited organization under (A)(1). The denial on this basis is sufficient to confer standing.

      . "Private forums” are also known as “nonpublic forums", see Perry 460 U.S. at 49, 103 S.Ct. at 957, and "public property that is neither a traditional nor a limited public forum”, see NAACP v. Devine, supra, 727 F.2d at 1257.

      . The fact that the public has continuous access to post offices for postal business does not make the property a public forum. See, e.g., U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) (mailboxes not public forums).

      . See infra p. 1357, and Perry at n. 7.

      . As the facts of Perry illustrate, the government may even close the facility, within certain bounds, to groups formerly granted access. See infra pp. 1356-1357.

      . The right of access is slightly different where a limited public forum is created by "selective access" rather than by indiscriminate public access. See infra p. 1357, and Perry 460 U.S. at 48, 103 S.Ct. at 956.

      . See supra note 4 and accompanying text.

      . See also Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974).

      . See discussion supra.

      . For the reasons that APWU has been deemed to "participate or intervene in [a] political campaign on behalf of [a] candidate for ... public office”, see infra p. 1360. The fact that APWU "participates ... in a political campaign", is a postal workers’ union, and is primarily seeking to register fellow postal employees and union members, significantly distinguishes it from the organizations which are granted access under (A)(1). The risk of coercion is much greater in the case of APWU — a partisan organization with close connections to the primary group it seeks to register — than it is in the case of the other groups which are nonpartisan and not connected to the postal workers. See discussion of the potential for coercion infra p. 1362.

      . Nor has plaintiff presented any evidence that USPS "intended to discourage one viewpoint and advance another”. Perry 460 U.S. at 49, 103 S.Ct. at 957. Section (A)(1) is viewpoint neutral.

      . It is clear that APWU recognizes the value of voter registration in partisan campaigns: see Defendants’ Supplemental Statement of Material Facts (Defts. Suppl. Mat. Facts) at ¶¶ 48, 53; and Plaintiff’s Reply Memorandum (Plf. Reply)

      . See note 27 on page 1359.

        at 8. See also lead story in the Sunday, September 16, 1984 Washington Post which stated that voter registration "was expected to be the most powerful weapon in the Democratic arsenal” this campaign. Washington Post, September 16, 1984, at A1, col. 1.

      . See Perry 460 U.S. at 53, 103 S.Ct. at 959 for the significance of alternative avenues of communication in First Amendment-access regulation analysis. See abo Greer v. Spock, supra, 424 U.S. at 839, 96 S.Ct. at 1218, and Pell v. Procunier, 417 U.S. 817, 827-28, 94 S.Ct. 2800, 2806-07, 41 L.Ed.2d 495 (1974).

      . See Defts. Mem. at n. 6.

      . The effectiveness of the APWU publications as a means of communication is borne out by the fact that the APWU conducted a membership presidential preference poll through the use of a pre-paid returnable postcard enclosed in the September issue of the American Postal Worker magazine, which drew enough responses to enable APWU to cast 248,972 votes at the AFL-CIO convention. See APWU News Service, Vol. XIII, No. 27, 10-5-83, at 1. APWU is also soliciting political contributions from its membership through its magazine.

      . Indeed, the Cleveland local of the APWU had planned to register voters at malls as well as at postal facilities. See Plf. Mat. Facts at ¶ 28.

      . The fact that these methods may not be as efficient or convenient as the methods desired by plaintiff is not dispositive. The First Amendment does not require that the most efficient avenue of communication be available. See, e.g., U.S. Postal Service v. Greenburgh Civic Assns., supra, 453 U.S. at 129, 101 S.Ct. at 2685. Moreover, the Court has trouble with plaintiff’s assertion that alternative avenues do not exist when plaintiff’s own papers have stated that "attempts to register voters on public property ... were bound to fail, and have not even been tried". Brief in Support of Plaintiff’s Motion for Reconsideration of this Court’s Denial of the Temporary Restraining Order at 4 (emphasis added).

      . Plaintiff's suggestion that postal employees are denied the right to be registered is frivolous. Employees may register themselves in the same way any other citizen registers to vote. With respect to this argument, the Supreme Court’s statement in Greer v. Spock is instructive: “members ... are wholly free as individuals to attend political rallies, out of uniform and off base”. 424 U.S. at 839, 96 S.Ct. at 1218.

      . See also, supra note 26.

      . See supra notes 26-27 and accompanying text.

      . Id. Moreover, the evidence presented on the manner used to register employees in New York suggests that at least in some locations the registration has not been conducted in a completely neutral fashion. In New York, the registration forms used by the APWU included a space for marking party affiliation, and the forms were returnable to the union instead of to a local Board of Election. See discussion infra p. 1361; see also Bailey Deck at ¶¶ 39, 41.

      . The intent of this provision is to prohibit organizations which qualify under (A)(1) from employing the services of USPS employees to register voters on postal premises. Deft. Mem. at 2. Defendants’ pleadings indicate, however, that (A)(3) prohibits an employee from registering voters on postal premises even if done on the employee's own initiative. Defts. Mem. at 5.

      . These were also some of the values which the Supreme Court identified and sought to protect in the Pickering and Connick decisions. See Pickering v. Board of Education, 391 U.S. 563, 571-73, 88 S.Ct. at 1736-37 (1968); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983).

      . The government argues that Letter Carriers, supra, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) governs review of Section (A)(3), and that the relevant inquiry is whether the regulation furthers legitimate governmental goals. See Defts. Opp. at 3-4, and Defts. Mem. at 7.

      . See Pickering, supra, 391 U.S. at 568, 572-74, 88 S.Ct. at 1736-37.

      . Simply put, the facts and issues in Pickering seem materially different from the facts and issues of this case. In Pickering the plaintiff, a school teacher, had been dismissed from his job for publishing a letter in a local newspaper which criticized the manner in which the school board had handled proposals to raise revenue. Thus, the issue was not whether the employer (school board) could regulate the employee’s speech on school premises, but rather whether the employer could completely suppress the teacher’s speech, expression, and views. The school board attempted to deny completely the right of the teacher to comment on matters of public interest — a fundamental value which the First Amendment seeks to protect. In this case, postal employees remain free to comment on politics and other matters of public interest, even while at work; they remain free to comment and to register voters off postal premises. Thus the restriction in the case at bar is much more limited than the wholesale ban on critical comment in Pickering.

      . The bottom line is that the facts of this case do not fit neatly within any of the well-recognized First Amendment analyses or categories. In some ways (A)(3) is an "access” regulation, suggesting a Perry-type analysis. Even more basically, the regulation could be viewed as a simple content-neutral, time-place-manner restriction. Under either analysis this Court would uphold the constitutionality of (A)(3).

      . The government need not await and demonstrate an actual incident of coercion as plaintiff contends. If the government can demonstrate that the potential for coercion is real, it may adopt a prophylactic rule. See Connick v. Myers, supra, 103 S.Ct. at 1692 & n. 12; and Perry at n. 12.

      . See 5 C.F.R. § 733.111(a)(2); see abo discussion supra at pp. 1360-1361.

      . See supra note 36.

      . The Supreme Court, in Letter Carriers, supra, 413 U.S. at 566, 93 S.Ct. at 2890 also rejected the argument that a prohibition on coercion would be sufficient to prevent the problem.

      . For an analysis of the question of whether a partisan organization is capable of engaging in political activity in a nonpartisan manner, see American Federation of Government Employees v. O’Connor, 589 F.Supp. 1551, 1553 (D.D.C. 1984).