dissenting:
The facts are usually paramount; the law is often but their hand-maiden. My dissent should not be viewed as disagreement with what the majority has stated the law to be. It is simply that the district judge read the facts differently; he was not clearly erroneous, and, in my judgment, the substitution of different conclusions from his findings represents an invasion across the line of demarcation between the functions of a trier of fact and those of appellate judges.
The controversy arose in late August and early September, 1977. Prior to that time, the parties lived, without incident, under a tacit agreement that social workers (the Migrant and Seasonal Farmworkers Association, Inc.) and providers of legal services (the Farmworkers’ Legal Project of the American Civil Liberties Union of Virginia, Inc.) would have free access to farmworkers living at migrant quarters at the farm of the Longs, provided only that prior notice of the visit was given.1
During the 1977 season, visits by the social workers and the providers of legal services occurred without compliance with the prior notice requirement. Often the express purpose, consistent with a Federal program to encourage termination of current employment and retraining for full-time job capability in preference to seasonal crop-picking, was to solicit the farmworkers to leave their employment on the Longs’ farm. The September 1,1977 confrontation grew out of such an effort in the course of an unnotified visit.2
*220The dispute which ripened into a law suit, consequently concerned exclusively a disagreement over whether the social workers and legal services providers should have given prior notice on the occasion of a general solicitation visit. They were on the premises without notice. Nothing established that there was ever any actual instance, any case or controversy, where the parties had differences over a visit in response to specific requests for assistance or to specific complaints or for the purpose of interviewing actual or potential witnesses or clients.
*221In that context, which was confined to an unannounced entry on the land of the Longs to solicit for a retraining program, the elder Long told the “visitors” to leave and not to return without a court order. One could hardly interpret that evidence as other than a statement by Long that he did not agree to unnotified visits for the purposes of solicitation. In all events, it is a permissible interpretation, and the one the district judge made.
When Long referred to a court order, he showed some appreciation for the fact that recourse to a peaceful manner for settling a dispute is preferable to self-help, and the probable ensuing violence, which could be expected in the confrontation between the Longs, Bonnes, Caimito and the Catholic nun.
The matter came on for hearing on motions for a temporary restraining order and a preliminary injunction, whereupon, assisted by the court, the parties agreed on the form of a consent decree. It called for reasonable notice before entering, except:
1. in the case of the social workers, “in emergency situations;” 3 and
2. in the case of the legal services providers, “when responding to specific requests for assistance, when responding to specific complaints or when entering for the purpose of interviewing actual or potential witnesses or clients.”
So far as the dispute between the parties was concerned, the Longs therefore won. On the sole occasion when they insisted that the plaintiffs leave the premises, the consent decree upheld their action, for reasonable notice had not been given. The District Judge motivated by a sensible wish to avoid controversy for the future, and perhaps recognizing that the consent decree would be more palatable if the plaintiffs appeared to “get something,” included the exceptions in the consent decree. However, no factual situation had yet arisen creating any dispute in the context of an emergency or of a specific purpose visit. The exceptions were in the nature of prevention, not cure.
As pointed out in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978), construing the essentially identical language of § 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k):
Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law.
The Longs were not in that category when suit was brought, or, so far as the record is concerned, at any subsequent time. The Supreme Court evidently assumed it was addressing the problem of an actual violat- or, not a potential violator.
In that posture, I submit that Judge Clarke’s factual finding that the defendants, not the plaintiffs, were the prevailing parties, was not clearly erroneous.
An unfortunate factor in all this is the premium Christiansburg appears to place on the status of an applicant for attorney’s fees as plaintiff or defendant. The parties, at the end of the September 1, 1977 confrontation, all understood that a resolution by lawsuit was necessary because they were in direct conflict over whether the Longs were entitled to reasonable notice when the purpose of a visit was solicitation. The Longs could have filed the lawsuit, seeking declaratory relief. I doubt that they would have been given, as plaintiffs, as tender care as the majority has accorded Bonnes, Camuto and the two corporations, one with a focused interest on providing social services, the other directing its attention to provision of legal services.
The point is that the consent decree concerned two factual situations: one real, the other hypothetical. The Longs were the victors in the real case. That made them, as the district court found, the prevailing parties. Alternatively, the nonexistence of any true case or controversy under the supposed possible set of facts on which Bonnes, *222et al. “won,” makes it appropriate to conclude that there were special circumstances authorizing the exercise of discretion by which the district judge denied the requested award of counsel fees. The case was one for which there was no factual basis, although we may assume that, had there been the essential factual substructure, the statement of the law as to specific or emergency visits would be correct. Cf. Christiansburg, supra, at 420, 98 S.Ct. at 699: “... Congress ... wanted to protect defendants from burdensome litigation having no legal or factual basis.” (Emphasis added.)
I would affirm.4
. Notice does not involve a request for or receipt of prior consent to or approval for the visit. The record establishes that only notice was required.
. Plaintiffs sought to establish that the visit on that date was within the “specific purpose” exception to the notice requirement spelled out in the consent decree, but the District Judge manifestly did not accept that version.
In that connection it serves a useful purpose to review the testimony. First consider that of the MSFA and its employee Camuto. He flatly acknowledged that on the occasion of the September 1, 1977 encounter, his purpose was solicitation:
CAMUTO: I arrived at the camp and parked the car, got out and started introducing myself to the people that I saw there who were sitting around — they were not working. They were actually in the camp, sitting in front of their doors — and gave a brief description of who I was and was there anyone interested in—
There was some ongoing program at the time that we were particularly interested in telling people about. I don’t remember exactly what that was.
But the gist of my conversations with the workers was about whatever that training program happened to be, and a few of them said they weren’t interested, and then I started talking to one man who did express an interest and said he did want to be enrolled.
As to the effects of the solicitation his testimony was:
CAMUTO: As far as I could tell in that office and in managing my program and evaluating what we were doing from our own point of view and from a community point of view, I did not see we were having a negative impact on the labor force, even though it’s true, as you pointed out and as has been pointed out, that we were obviously taking people out of the labor force.
Mr. Camuto never suggested that he, on September 1, 1977, went to meet an emergency or with a specific purpose. He was quoted by the elder Long:
LONG: So i got my pickup and went down there, and there was three, and I says — I said, “Tell me something. What you are folks doing here?”
Said, “Well, we’re trying to help these people.”
I said, "Help them in what respect?”
*220He says, “Well, we’re trying to find out if they’re getting paid right, getting proper food, stuff like that, trying to help them.”
I said, “That’s not the way I understand it. I understand you’re down here asking those people to make complaints. Is that so?”
“Yes, that’s partially.”
Reference to Camuto’s affidavit accompanying the verified Complaint further reinforces the conclusion as to the exclusively general solicitation purposes of Camuto:
I drove to the nearest migrant farmworker dwelling in order to interview the workers to determine their eligibility for the MSFA services in general and to ascertain particular interests that the farmworkers may have in specific MSFA program [sic].
On that testimony, I suggest that there is no foundation for holding that Camuto or his employer MSFA prevailed. The plaintiffs, with common counsel, made no effort to separate time spent for each party plaintiff. At a minimum, therefore, on the remand which the majority has decided is proper, it should be limited to Bonnes and FLP-ACLU. As to Camuto and MSFA, affirmance is clearly indicated even on the theory advanced by the plaintiffs and accepted by the majority. At no time did Camuto ever suggest that his organization was interested in specific purpose counseling.
Turning to Bonnes and FLP-ACLU there was simply a complete failure of proof. Miss Bonnes was not called as a witness, so it is impossible to determine with certainty her purpose in making the September 1, 1977 visit. Besides Camuto, the only other witness for the plaintiffs was Geraty, the FLP-ACLU lawyer in charge of its office and the superior of Miss Bonnes. He, however, had never been to the Long farm. He never received a request for assistance from anyone at the Long farm. He did testify, without details, that Bonnes went on September 1, 1977 in response to a referral, and Camuto similarly recalled generally that such was her purpose. But the judge was not compelled to believe such hearsay and obviously did not. The finding that “the Longs were the prevailing party in this case” establishes that.
Even accepting that a specific purpose to see a particular farmworker or farmworkers motivated Miss Bonnes in making the September 1, 1977 entry upon the Long farm does not alter matters. The verified Complaint, filed under the oath of Miss Bonnes, states that prior to the confrontation with the Longs:
Upon arriving at the labor camp, Plaintiffs discovered that the farmworkers who requested the legal assistance were not available.
That ended, before any “Get off my land” directions from the Longs, any right of Miss Bonnes to remain there without notice. Moreover, the Complaint spells out that she had thereupon proceeded to general solicitation:
Plaintiffs did begin an interview of another migrant farmworker requesting MSFA services.
The elder Mr. Long testified about the events of September 1, 1977. He indicated that “he” —who must have been Camuto, since the other two were women — stated that he was there to solicit, but nothing was said to indicate that Bonnes sought to clarify that she, who came with Camuto, was there for any other purpose. The plaintiffs declined to cross-examine the elder Long at all.
The testimony of the younger Long was that Bonnes had visited the farm only once before September 1, 1977, on a day about the first of July. His testimony was uncontroverted that she then described her purpose as seeking out migrant workers to whom to give financial assistance so that they might leave and seek other employment.
Geraty had testified that:
GERATY: Bonnes, as the outreach worker, visited virtually every migrant labor camp in the two counties and both on a sort of a systematic basis — that is, just visiting and providing educational and informational material — and also in response to requests for assistance.
Certainly, in the uncertain state of the record, the district judge was entitled to his inference against the plaintiffs, who had the burden of persuasion. The court’s finding of fact reads:
The Court finds that the cause of such diminution in the labor force of Mr. Blanding is attributable to the manner in which the persons of government and social agencies performed their task.
And all of these are findings of fact, gentlemen.
A reading of the record should compel a finding that the Longs were thinking of the visits of Camuto and Bonnes solely in terms of solicitation, and not at all as representing efforts to see a specified individual or individuals for a specific purpose.
. The record is devoid of proof of any emergency situation, on September 1, 1977 or on any other date.
. No one should doubt the need for counseling assistance of migrant farmworkers. One should make every reasonable effort to insure that farmers are not permitted to erect barriers precluding easy access by farmworkers to social and legal services. At the same time, one does not materially enhance the rights of one protagonist by disregarding the rights of another. The district judge made findings, fully supported by the record, that the Longs had not acted improperly. It is not open to us to question those findings, however predisposed we may be, in the abstract, to suspect improper action.