Full opinion text
TABLE OF CONTENTS I. Introduction................................921 II. Jurisdiction.................................922 III. Factual Background.........................922 A. June 24, 1980—The Picketing Begins____922 B. Texas Rural Legal Aid.................923 C. Deaf Smith County Sheriff Travis McPherson ..................................923 1. During the Strike...................923 2. Outside the Strike Period...........924 D. The Temporary Restraining Order.......926 IV. Procedural History of the Litigation.........928 A. No. 2-80-127: The TRO and the Counterclaim for Violation of Civil Rights — 928 B. No. 2-80-129: Constitutionality of the Texas Picketing Statutes.................929 C. The Consolidated Actions............... 930 V. Moya’s Claims..............................930 A. § 1983 .................................930 1. Color of State Law.................930 2. Deprivation of Rights...............933 (a) 1st Amendment, Substantive.....933 (b) 1st Amendment, Procedural.....935 (c) 6th Amendment.................936 (d) Legal Services Corporation Act.. 936 (e) Malicious Prosecution...........938 B. § 1985.................................938 VI. Immunity...................................939 VII. Damages...................................940 VIII. Recovery Against the TRO Bond............941 A. Liability................................941 B. Damages...............................942 IX. Historical Background to the Constitutional Challenges in No. 2-80-129: Of Medrano v. Allee.....................................942 X. Standing....................................944 XI. The Merits of the Constitutional Challenges.. 945 A. Article 5154d, § 1(1).................... 945 B. Article 5154d, § 1(2).................... 947 C. Article 5154d, § 2...................... 947 D. Article 5154d, § 3...................... 950 E. Article 5154f........................... 953 F. Article 5154g, § 2...................... 954 XII. Summary of Holdings....................... 957 OPINION OF THE COURT MARY LOU ROBINSON, District Judge. I. Introduction In the summer of 1980, the Texas Farm Workers Union (“TFWU”) attempted to organize onion harvest and packing shed workers in the Hereford, Deaf Smith County, Texas area. The TFWU picketed the onion fields and packing sheds of several growers. Seventeen growers, packers, and trade associations, determined to stop the picketing activities, filed suit in state district court against the union, its organizers and its attorneys. They alleged multiple violations of Texas picketing statutes and obtained an ex parte temporary restraining order which allegedly devastated the union’s organizing efforts. The state suit was removed to federal court (No. 2-80-127), civil rights counterclaims filed, and an original action seeking declaratory and injunctive relief regarding the constitutionality of the picketing statutes was also filed (No. 2-80-129). The growers, packers, and trade associations eventually voluntarily dismissed their claims, leaving only the civil rights counterclaims and the constitutional challenges to be tried. The consolidated actions were tried to the Court. This Opinion constitutes the Court’s Findings of Fact and Conclusions of Law. It first discusses, at some length, the factual context of the onion field strike and then considers, in turn, the civil rights claims and the constitutional challenges to the Texas picketing statutes. II. Jurisdiction This Court has jurisdiction over No. 2-80-127 and No. 2-80-129 under 28 U.S.C. §§ 1331 and 1343(a). III. Factual Background Onions in the Hereford area are harvested for 6-8 weeks each year beginning in mid- to late-June. A tractor with a blade lifts the onions out of the ground and leaves them lying on the surface. Fieldworkers then clip the tops and bottoms and sack the onions for curing in the field. If onions are left lying in the sun for more than a day or two, they scald and become worthless. In June of 1980, Jesus Moya (“Moya”) a paid farm worker organizer for the TFWU, began organizing onion field and packing shed workers around Hereford, Texas. Moya had been a union organizer since 1978 and had participated in TFWU organizing campaigns in the lower Rio Grande Valley. The TFWU arrived in Hereford knowing that a harvest season strike would threaten area onion growers with rotting onions in the fields and large monetary losses. The TFWU hoped the growers would agree to the workers’ demands for higher wages and better working conditions, such as drinking water and toilets in the fields. Preparation for the 1980 organizational campaign had begun many months earlier. Moya himself had made several trips to the area in an effort to familiarize himself with the people and the surrounding farms. At trial, Moya stated that the primary objectives of his 1980 organizational efforts in Hereford were to obtain representation for migrant workers by the TFWU and to obtain higher wages for farm workers in the area. To achieve these objectives, Moya planned to use the following methods: (1) picket lines, marches, demonstrations, protests, hunger strikes, and strikes at the points of production, i.e., the onion fields; (2) education of workers about their basic legal rights concerning minimum wages and farm labor contractors; and (3) organization of a class of farm workers to lobby for workers’ compensation, collective bargaining rights, pesticide control laws, and other civil rights legislation. In Moya’s words, “[w]e explain to them that the growers get rich by stealing the labor of the workers. We explain to them that one of the main reasons as to why they are suffering such misery is because of the thirst for profits by these growers.” A. June 24, 1980—The Picketing Begins In the early morning hours of June 24, 1980, Moya, Roy Hernandez and Delia Gamez Prince—two other TFWU organizers— set up the first picket line at a Howard Gault Company (“Gault”) onion field. The day before, Moya had spoken with several workers from the Gault fields and they had told him that the harvest had begun. Moya selected Gault because he had heard that the field workers were not being paid the minimum wage—then $3.10 per hour— and that they had no drinking water or toilet facilities in the fields. Moya instructed his volunteers to man a picket line on June 24, 1980, early in the morning, alongside the public road close to the field being harvested. With his picket line in place, Moya instructed his volunteers to talk to the workers as they arrived for work in the field and to hand out leaflets. The picketers remained on the public road that paralleled the field. They did not attempt to block the field’s entrances, nor did they attempt physically to prevent workers from entering the field to work. The picket line that day was successful. Few workers went into the Gault field. Many workers joined the picket line bordering the Gault onion field. Activity along the picket line was generally peaceful. The workers carried flags or signs, and discussed their demands among themselves. The picketing at the Gault onion field continued for the rest of that week. Support for Moya’s efforts to organize the workers grew at a rapid pace. Pickets were eventually set up at the Griffin & Brand fields as well as various packing sheds in the area. Neither Moya nor his supporters on the picket line entered the fields to talk to workers. Instead, they shouted to the workers or used a loudspeaker. They urged the workers to come out of the fields and shouted “huelga ”—strike—and “come join us, compañeros. Come and join us, fellow brothers, so that we can win.” Although some picketers also reviled and denounced the workers who remained in the fields, no threats were made against either the growers or the workers remaining in the fields. There was no violence along the picket lines. The ranks of picketers swelled to over 200 workers at times between June 24 and 30, 1980. When pickets were established at the Griffin & Brand fields and other Gault onion fields, nearly all of the workers left the fields. At least one negotiation occurred in which Gault agreed to raise the wage per bushel basket of onions harvested from 45 cents to 60 cents, to provide drinking water, and to put toilets in the fields. The Meat Cutters Union, LULAC, the GI Forum, and churches in Houston, Austin and San Antonio were providing money and assistance. Five days into the strike, Antonio Orendein, the director of the TFWU, and Martha Owen, a paralegal with the TFWU Law Project, arrived in Hereford to direct an expansion of the strike into surrounding counties. B. Texas Rural Legal Aid Texas Rural Legal Aid, Inc., (“TRLA”), is a federally funded legal aid organization with an office in Hereford. Before 1980, it had represented the TFWU in actions relating to TFWU organizing activities in the lower Rio Grande Valley. It also represented numerous field and packing shed workers in the Hereford area in minimum wage and farm labor contractor claims against growers, such as Gault, and packing shed operators, such as Griffin & Brand. TRLA attorneys Edward Tuddenham, Bill Beardall, and Inez Flores were at the picket lines on numerous occasions to render legal advice. If legal questions arose, the workers were able to ask an attorney from TRLA for advice. The TFWU wanted TRLA at the picket lines to advise workers that they could file lawsuits for minimum wage violations and to mediate between the workers and the police or growers should the need arise. The TFWU also used TRLA attorneys to advise them concerning the trespass laws. C. Deaf Smith County Sheriff Travis McPherson 1. During the Strike Travis McPherson was the Sheriff of Deaf Smith County during this period of time. When the picketing began, Sheriff McPherson sent several deputies to the Gault field to investigate reports that children were running across the road and that there might be some violence relating to the picketing activity. No children were ever reported as having been injured, nor did the deputies ever report violence on the picket lines. Sheriff McPherson had had “intelligence reports” from the Valley that there might be an onion field strike in Deaf Smith County, as had the growers. Before any picketing activity by the TFWU, Sheriff McPherson advised his deputies that the TFWU was coming and that his deputies would have to go out to the fields to help keep the peace. Sheriff McPherson himself viewed much of the picketing activity at the Gault onion field and saw no violence, no blocking of ingress to or egress from the fields, and no commission of any otherwise unlawful acts. No arrests were ever made for picketing activities. Delia Gamez was arrested, later in the summer, for trespassing after entering a Gault onion field to speak with a worker about a wage claim. Sheriff McPherson considered it unwise to escalate matters by arresting participants or making a show of force, so long as the picketing remained, for the most part, lawful in nature. Nonetheless, he felt “there was some possibility of some very dangerous, terroristic-type activities going on.” He believed that the TFWU, TRLA, and Moya were conspiring to disrupt the onion harvest and that the TFWU organizers were “outside agitators, communists and terrorists.” Sheriff McPherson and his deputies began videotaping the picketers to record any incident of lawbreaking. McPherson himself parked across the street from the TRLA offices in Hereford and began videotaping persons entering and leaving. He also recorded the license plate numbers of the cars parked outside TRLA’s offices and ran makes to determine how many were from the Valley. The Sheriff’s department used both its own videotape equipment and some supplied by the growers. After the equipment broke down, McPherson instructed his deputies to continue pointing the camera at the picketers, apparently for deterrent effect. By the time of this trial, all of the videotapes had been lost and were unavailable for viewing. Several picketers testified that the videotapes served to inhibit their activities and created a fear of blacklisting among workers familiar with a similar videotaping incident in the Valley. 2. Outside the Strike Period Neither Moya, the TFWU, nor TRLA have been well received in Hereford. TRLA’s minimum wage, farm labor contractor and employment discrimination lawsuits have created a bitter animosity from citizens outraged that their federal tax dollars are being used to finance lawsuits against them. One of the TFWU’s and TRLA’s most outspoken critics is Sheriff McPherson. He has spoken openly and candidly of his opposition to the TFWU and TRLA’s presence in Hereford. In mid-February of 1981, Sheriff McPherson attended a conference of the Hi-Plains Vegetable Growers and Shippers Council which was attended by many of the growers and packers in the Deaf Smith County area. He spoke on problems relating to picketing and striking by field laborers: MR. FISHER: Travis, if you would. Incidently, this is informal. If anybody has a question at anytime, just holler. Interrupt. MR. MCPHERSON: Well, needless to say, these people are not my greatest fans. I’ll tell you. To tell you a little bit about the things that we run into and the things that we’re going to do in the future, we fully intend to take every measure to try to prevent any disruption of the production of the crops. These people are outsiders and they have no business in our area and I’m not going to cater to them. I think I’ve made that clear to them time and time again, but however, they still come back. We’re going to treat this just as they do in a terrorist situation. They’re operating in the same manner. They’re using the same techniques and all and we’re going to use counter-intelligence, we’re going to use dogs and we're going to use television. This seems to be a thing that really helps us. Now, they’ve got people running around with them from El Salvador, the Socialist Alliance and a number of others. Now, you know, these people are involved in communism. Moya, he goes around preaching communism all the time. The same Cuban Doctrine. Now, you know, we can’t ignore this type of thing. We either hang together or we’re going to hang separate. So, you know, I fully intend to try to do my job. And I fully intend to try to keep these people where they belong. Jesus Moya is down at the Capital now and he’s down there trying to do his little thing. This guy is not dumb, by any means. But I don’t think he’s the biggest problem. I fully agree with Wes. I think that the Texas Rural Legal Aid is the problem because they’re supplying these people with the information and they’re telling them all about the Federal laws and everything. And, you know, it’s causing you some real serious problems. It’s going to continue until we stop the type of abuse as we have with Texas Rural Legal Aid. The only way we’re going to stop it is get ahold of our congressman, our senators and get their money stopped. And I’m going to do everything I can. I hope you do, too. But we’ve got to work hard on this. And we’re going to do it. Bill Sarpalius is our new senator from this area and he’s head of some the agricultural ... I think chairman of some of the committees or something down there and working on some laws to put more teeth into our trespass laws and this will help us a great deal. But one thing about it is, for God’s sakes, don’t do anything. Don’t take it upon yourself to commit any violence or anything. You should leave it up to your law enforcement because we know what we can do. We’ve been trained in it. We know exactly how far to go. We know what to look for. The people in this area, we have some new sheriffs around us and all and we’re going to have regular meetings. We’re going to have meetings with the growers and the shippers. We’re going to have meetings with the people out in the fields and, in fact, I’ve already been contacted by these people and they say they don't want Jesus Moya back up here. So, you know, we’re going to do everything we can in this area and if you want to grow onions, you grow them. Because they’re not going to bother you in this area or in my county, anyway. So that about sums up my comments. I tell you, I think it’s just a terrible injustice when our tax money is being used against us. But this is what’s happening with Texas Rural Legal Aid. And I don’t think this is the American way. Thank you. In April of 1981, another meeting was held, attended by city and county officials from Deaf Smith and Castro Counties, as well as law enforcement officials, businessmen and farmers from the Hereford area, and a representative from the Foundation For Law In Society (“FFLS”). A local news report indicated that none of the meeting’s participants knew about it until personally contacted by Sheriff McPherson the day before. The topic of discussion was TRLA’s operations in Hereford. Travis McPherson had invited the; president of the FFLS, Lewis Ingram, to visit with various community leaders concerning TRLA’s operation in Hereford. Ingram told the group of ways to force TRLA to leave Hereford. News reports of the meeting indicate that Ingram told those present that the best way to force TRLA to leave Hereford was to apply political pressure to have their funds halted on the national level. .Ingram advised local citizens to treat TRLA as their enemy. He advised local merchants, for example, to band together in refusing to sell goods to ány TRLA lawyer or their family and to have law enforcement officials use any means necessary and available to harass them. Animosity toward the TFWU and TRLA’s activities is further exhibited in a 1979 song which was written by a Deaf Smith County Deputy Sheriff. The song, entitled “The Ballad of Deaf Smith County,” praises the virtues of Sheriff McPherson and criticizes the efforts of TRLA. It was written and recorded in the Hereford area by Phil Sciumbata and the “Singin’ Sheriffs”, as a voice-over to the Battle Hymn of the Republic: Glory, glory, hallelujah. Glory, glory, hallelujah. Glory, glory, hallelujah. His truth goes marching on. In the Panhandle of Texas, which you all know well, There sets two thousand square miles of county which is a living hell. It’s called Deaf Smith. An odd sort of a name. But listen to my story and I’ll try to explain. And of the people there and the problems they share. Some are good, some are bad and some don’t care. Travis McPherson is the Sheriff of this land. He’s fair and he’s honest. A mountain of a man. He’s a friend of those who respect the law. For truth and justice, he’s a walkin’ tall. One day out of nowhere, like a storm they came. A group of so-called attorneys trying to make a name. They said, listen here, Sheriff, we are going to explain. An illegal alien and a U.S. citizen are one and the same. We’re going to raise hell and we’re going to sue. And we’re going to do anything to get the best of you. And when it’s all over, well, we’re going to run. ’Cause stirring up trouble is our way of fun. 01’ Travis stood tall and said with a grin, You carpetbaggers are not going to win. I aim for justice and the American way. So get out of Hereford, TRLA. The Anglo, the Blacks, the Mexican, too, They’re all my people, so to hell with you. Illegal aliens will get the jobs of the people I serve. They’ll take over our country which they don’t deserve. This is America. Don’t give it away. For me and my people, well, we’re here to stay. I remember the meeting at the town hall square. A handful of people with grudges to bear. They came face to face with the law that night. They said, we defy your law, and we’ve got the right. I sat and I watched as the tension grew. A lawman spoke, as he was asked to do. A voice cried out, “lawmen lie. To live by your law, I’d rather die.” The room grew still, the silence broke, The Sheriff stood up and in a soft voice, he spoke. I aim for justice and the American way. So get out of Hereford, TRLA. The Anglo, the Blacks, the Mexicans, too. They’re all my people, so to hell with you. Illegal aliens will get the jobs of the people I serve. They’ll take over our country which they don’t even deserve. This is America. Don’t give it away. For me and my people, well, we’re here to stay. A local radio station in Hereford refused to air the song because they felt it was “inflammatory and would serve no purpose.” They did, however, receive telephone requests to broadcast the song. A radio station in Dimmitt, Texas, twenty miles south of Hereford, broadcasted the song. The Dimmitt radio station can be heard in Hereford. D. The Temporary Restraining Order Late in the evening of Thursday, June 26, 1980, Roland Saul, Deaf Smith County Criminal District Attorney, and Gerald (“Jerry”) Smith, one of his assistants, were having dinner at a local country club after the return of a jury verdict. Saul and Smith had spent the first few days of the strike trying back-to-back felony cases. While they were eating, Wes Fisher, a local grower and packer, approached and asked if there was anything that could be done about the strikers. This overture lead to a series of meetings and telephone calls with growers, packers and trade associations over the next few days as Jerry Smith and the law firm of Saul, Smith & Davis, prepared a lawsuit designed to break the strike. On Monday, June 30, 1980, the Howard Gault Company, the Griffin & Brand Sales Agency, and 15 other growers, packers and/or trade associations (the “growers”), filed suit in the 222nd Judicial District Court in Hereford, Deaf Smith County, against TRLA; the TFWU; Edward Tuddenham and Inez Flores, TRLA attorneys who had been at the picket lines; Moya and S.T. Rendon. Many of the state court plaintiffs had been neither picketed nor struck, but joined in the lawsuit as a sort of preemptive strike and a show of solidarity. The suit alleged that numerous violations of the Texas picketing statutes had been committed and that the defendants had entered into a conspiracy to trespass on the growers’ property, to block entrances to the onion fields, to use obscene and defamatory language against the growers and their employees, and to engage in mass picketing in violation of Texas law. The growers also alleged that TRLA, a regulated grantee under the Legal Services Corporation Act, 42 U.S.C. § 2996 et seq. (1982), through its employees, had violated the provisions of the Act by improperly spending federal money to support, advocate and encourage organizing activities by the TFWU and others. At 1:30 p.m., on the 30th, State District Judge David Wesley Gulley issued an ex parte temporary restraining order which restrained the state court defendants as follows: (a) From placing or causing to be placed more than two (2) pickets at any time within either fifty (50) feet of any entrance to any premises being picketed, or within fifty (50) feet of any other picket or pickets. (b) From placing or causing to be placed pickets which constitute or fofm any character of obstacle to the free ingress and egress from any entrance to any premises being picketed or to any other premises either by obstruction [sic] said free ingress or egress by their persons, or by-and-through their agents, servants, and employees, or by the placing of vehicles or other physical obstructions. (c) From acting, singly, or in concert with others, by use of insulting, threatening or obscene language, to interfere with, hinder, construct or intimidate, another in the exercise of his lawful vocation, or from freely entering or leaving any premises. (d) From singly, or in concert with others, engaging in picketing or any form of picketing activities, where any part of such picketing is accompanied by slander, liable [sic], or the public display or publication of oral or written misrepresentations. (e) From acting singly, or in concert with others, establishing, calling, participating in, aiding or abetting a secondary picketing. (f) From acting singly, or in concert with others, establishing, calling, participating in, aiding or abetting secondary boycott. (g) From, acting singly, or in concert with others, establishing, calling, maintaining, participating in, aiding or abetting any strike or picketing, an object of which is to urge, compel, force or coerce any employer to recognize or bargain with, or any employee or group of employees to join or select as their representative, any labor union or labor organization which is not in fact the representative of a majority of the employees of an employer or, if the employer operates two (2) or more separate and distinct places of business, is not in fact the representative of a majority of such employees at the place or places of business subject to such strike or picketing. TRLA was additionally restrained: (a) From engaging in any public demonstration, picketing, boycott, or strike or encouraging others to engage in any public demonstration, picketing, boycott, or strike. (b) From engaging in or encouraging others to engage in any other illegal activity. A hearing on the growers’ motion for a temporary injunction was set for 9:00 a.m., on July 10, 1980. The growers posted a bond of $10,000 and had sheriff’s deputies serve the TRO. Jerry Smith had been at the courthouse trying to see the judge and obtain the TRO since early morning. Judge Gulley had several changes made in the TRO before he signed it. No notice was given to TRLA, even though their offices are only a stone’s throw from the courthouse in Hereford. The strike was devastated. Almost immediately picketers began returning to work and fieldworkers ceased coming out of the fields to join the strike. Many feared arrest. The TRLA attorneys at the picket lines were replaced with Martha Owen, the TFWU Law Project paralegal. Those on the picket line were afraid to use the same strident language they had used in the past. The number of workers picketing dropped from near 200 to 20-30. The picketers used a tape measure to keep the 50-foot spacing under the watchful eye of the Sheriff's videotaping. Moya’s reputation with TFWU executives was damaged because they questioned his capacity to organize a peaceful strike. The workers’ confidence in him was shaken. Nevertheless, TFWU’s organizing activities continued throughout the onion harvest season with some success. In Moya’s words, “the intensity of our success was diminished.” IV. Procedural History of the Litigation A. No. 2-80-127: The TRO and The Counterclaim for Violation of Civil Rights On June 30, 1980, TRLA filed its petition for removal and the case was removed to this Court. On July 1, 1980, TRLA, on behalf of all of the state court defendants, filed its Motion to Dissolve or Modify Temporary Restraining Order. In their motion, they contended, inter alia, that the ex parte granting of the temporary restraining order by Judge Gulley was improper because there was nothing to indicate that the growers made any effort to contact the defendants to allow them an opportunity to be heard, that the TRO placed unconstitutional burdens upon defendants’ First Amendment rights, that the statutory basis of part of the order had been declared unconstitutional by a federal district court in the Southern District of Texas, and that the growers had failed to establish the necessity for a TRO. On July 3, 1980, this Court modified the temporary restraining order to delete the language pertaining to the placing of more than two pickets at any time within either fifty feet of any entrance to any premises being picketed, or within fifty feet of any other picket. On July 8, 1980, the growers moved to extend the temporary restraining order, which was due to expire on July 10, 1980, at 9:00 a.m. On July 9, 1980, the state court defendants moved to dissolve the temporary restraining order. Since the action had already been removed to this Court and the presiding judge of this Court was on vacation, the motions were heard in the Lubbock Division of the Northern District of Texas, the Honorable Halbert O. Woodward, presiding. Judge Woodward denied the defendants’ motion to dissolve the temporary restraining order because it expired by its own terms on July 10, 1980. He declined to make any finding or ruling regarding the growers’ allegation that Tuddenham, a TRLA attorney, violated the provisions of 42 U.S.C. § 2996e(b)(5) (1982), stating that the testimony failed to justify the issuance of any further injunctive relief on this point. He found that the growers failed to meet their bdrden under the Norris-LaGuardia Act, 29 U.S.C. §§ 107 & 108 (1982) (pertaining to the issuance of injunctions in labor disputes by United States Courts), and denied their request for an extension of the temporary restraining order. Judge Woodward found that “the evidence presented at the evidentiary hearing will not support any finding and does not establish that any unlawful acts will be committed in the future, unless restrained.” On July 21, 1980, TRLA filed its answer. The TFWU and Moya filed a separate answer and counterclaim the same day. The TFWU and Moya claimed that they were entitled to relief under 42 U.S.C. §§ 1983, 1985(2) & 1985(3) (1982) for deprivation of rights secured to them by the Constitution and laws of the United States. They sought $150,000 in actual and punitive damages, as well as injunctive relief. On March 9, 1983, the growers moved to dismiss this case in its entirety, including TFWU’s and Moya’s counterclaim. In their motion, the growers allege that “[t]he suit has, in effect, been abandoned for the reason that it has become moot. The picketing ended in the Summer of 1980. There was no picketing in 1981 or 1982, nor at any time following about August 1, 1980.” The growers stated that they did not desire to pursue any further injunctive relief. Defendants opposed any dismissal as to their counterclaim. On May 12,1983, the Court dismissed the growers’ action against TRLA, the TFWU, and Moya, and ordered that the case proceed as to TFWU’s and Moya’s counterclaim. On June 2, 1983, the growers filed an amended pleading in No. 2-80-127 in which they stated that they no longer sought to prosecute their cause of action against TRLA, the TFWU, and Moya, and formally responded to the counterclaim asserted by the TFWU and Moya. B. No. 2-80-129: Constitutionality of the Texas Picketing Statutes On July 1, 1980, the TFWU and TRLA filed a class action complaint in which they sought declaratory and injunctive relief concerning the constitutionality of the Texas picketing statutes. Named as defendants in this action were: (1) the sheriffs of Deaf Smith, Castro, Hale, and Bailey Counties, Texas, in their official capacities, (2) Colonel James B. Adams, Director of the Texas Department of Public Safety, in his official capacity; (3) Roland Saul, in his capacity as Criminal District Attorney for Deaf Smith County, and (4) Jerry Smith and Don Davis, in their capacities as Assistant Criminal District Attorneys for Deaf Smith County. On July 3, 1980, Plaintiffs amended their complaint to add Delia Gamez (Prince), a seasonal farm worker and a member of the TFWU, as an additional Plaintiff, and Mark White, then Attorney General of the State of Texas, as an additional Defendant. In their First Amended Complaint, Plaintiffs allege that the language of the temporary restraining order parallels the provisions of Tex.Rev.Civ.Stat.Ann. arts. 5154d, 5154f, and 5154g (Vernon 1971). These provisions of Texas law pertain to labor disputes and provide for both civil and criminal enforcement by either the County or District Attorney. In No. 2-80-129, Plaintiffs ask the Court to declare Art. 5154d, §§ 1-3; Art. 5154f, §§ 2(b), 2(d), and 2(e); and Art. 5154g, § 2 (Vernon 1971) unconstitutional. Because they anticipate future enforcement of these statutes against them, they seek a permanent injunction enjoining enforcement of the statutes. Plaintiffs’ claims against the sheriffs of Hale, Castro, and Bailey Counties, as well as their claim against Colonel Adams, were dismissed by the Court. Defendant Charles Tue’s, sheriff of Hale County, counterclaim and third-party action were also dismissed. At the time of trial, the remaining defendants were: Travis McPherson, Sheriff of Deaf Smith County; Roland Saul, Jerry Smith, and Don Davis, Criminal District and Assistant Criminal District Attorneys for Deaf Smith County; and Jim Mattox, Attorney General of the State of Texas. This case did not proceed as a class action because of Plaintiffs’ failure to comply with Local Rule 10.2(b), which provides that “within 90 days of the filing of a complaint alleging a class action, the attorney for the plaintiff shall move for certification.” C. The Consolidated Actions On April 6, 1983, No. 2-80-127 was consolidated with No. 2-80-129 for purposes of trial. On June 13, 1983, the consolidated actions came on for trial before the Court, sitting without a jury. The TFWU, through its attorney, moved that its causes of action, filed as a Counter-Plaintiff in No. 2-80-127 and as a Plaintiff in No. 2-80-129, be severed and that they be granted a continuance as to that portion of those cases. The Court denied the motion. Counsel for the TFWU, Bill Beardall of TRLA, then stated, on the record, that he would not present any evidence or request any relief on behalf of the TFWU. He stated that all evidence presented would be on behalf of Counter-Plaintiff Moya (No. 2-80-127) and Plaintiffs TRLA and Delia Gamez (No. 2-80-129). He further stated that even if evidence offered on behalf of another party might also bear on TFWU’s claim, that, at the instruction of the TFWU, he was not seeking any relief on its behalf. Accordingly, the Court dismissed all causes of action of the TFWU in both actions, leaving Moya as the only claimant for relief in No. 2-80-127, and TRLA and Delia Gamez as the only claimants in No. 2-80-129. V. Moya’s Claims Moya contends that his civil rights were violated by the growers’ actions. Specifically, Moya contends that the growers: (1) “[Ajgreed and conspired to file this lawsuit to obtain a TRO;” (2) “[Cjonspired to take these actions maliciously and without according [him] ... due process of law;” (3) “[E]ntered into this conspiracy with the purpose and intention of denying [him and other members of the TFWU] and other Mexican-American farm worker employees of [the growers] ..., as a class, their rights to freedom of speech and assembly, their right to organize to pursue minimum wage claims, and their right to due process of law, and further with the purpose and intention of harassing [them] ... in the free exercise of those rights;” (4) Conspired with the Criminal District Attorneys’ office in Deaf Smith County to file this action and obtain a temporary restraining order “in bad faith and with malicious abuse of process” because they “knew they had no possibility of success on the merits and that certain of their claims for relief were based upon unconstitutional provisions of Art. 5154 et seq.;” and (5) Conspired with the state judge who issued the temporary restraining order against him to use “the full coercive powers of the State courts to enforce the growers unlawful objectives.” A. § 1983 To recover under § 1983, Moya must show that the growers (1) acted under color of state law, and (2) while so acting, deprived him of a right secured by the Constitution and laws of the United States. 1. Color of State Law. In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court set forth a two-step test for determining whether an action is taken under color of state law for purposes of § 1983: First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible ... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Id. at 937, 102 S.Ct. at 2753-54. The Court noted each case must be examined on its own facts and that its holding was “limited to the particular context of prejudgment attachment.” Id. at 939 & n. 21, 102 S.Ct. at 2755 & n. 21. Consistent with this holding, the Fifth Circuit has found private litigants to have acted under color of state law when they invoked Louisiana’s attachment law, Folsom Investment Co. v. Moore, 681 F.2d 1032, 1037 (5th Cir.1982), and Mississippi’s replevin statute, Hollis v. Itawamba County Loans, 657 F.2d 746 (5th Cir.1981). At the same time, it has affirmed that: Private misuse of a state statute alone does not describe conduct that can be attributed to the state. It is the procedural scheme created by the statute that is state action, and therefore subject to constitutional restraints. Earnest v. Lowentritt, 690 F.2d 1198, 1201 (5th Cir.1982). Thus, insofar as [plaintiffs] have alleged that the [statutory] scheme is violative of the constitution, the private parties who set that scheme in motion acted under color of state law. Folsom Investment, 681 F.2d at 1037. Here, the growers who filed suit against Moya were private litigants, not state officials. They sought injunctive relief under the Texas picketing statutes, which prescribe certain rules of conduct for picketers and explicitly provide a private right of action for violations. Arts. 5154f, § 4 and 5154g, § 4. In District 28, United Mine Workers of America v. Wellmore Coal Corp., 609 F.2d 1083 (4th Cir.1979), the Court found that coal companies which had obtained ex parte injunctions from state courts restricting the picketing activities of the plaintiff unions had not acted under color of state law. Accord, Louisville Area Inter-Faith Committee for United Farm Workers v. Nottingham Liquors, 542 F.2d 652 (6th Cir.1976). The Fifth Circuit reached the opposite conclusion in a pr e-Lugar case, Gresham Park Community Organization v. Howell, 652 F.2d 1227 (5th Cir.1981). In Gresham Park, a community organization began picketing a new liquor store it opposed. The liquor store owner sued in state court and obtained a TRO enjoining the picketing. After efforts to obtain relief in state court proved unsuccessful, the community organization filed suit in federal court under § 1983. The defendants argued, among other things, that they had not acted under color of state law. After an extended discussion, the Fifth Circuit concluded that: [W]here a state court makes a ruling arguably infringing upon first amendment rights and the ruling is based on a state-created prohibitory rule, be it common law or statutory, the suit loses its private nature____ Because the same factor is present here, we find state action. Id. at 1239. Gresham Park is not controlling in this case because the Fifth Circuit’s analysis stops short after the first Lugar factor. Here, as in Gresham Park, any deprivation was “caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the State,” thus meeting the first Lugar requirement. But while the Fifth Circuit stopped here in Gresham Park, a pr e-Lugar case, this Court must continue to the second Lugar requirement: may the growers fairly be said to be state actors? In Lugar, a creditor obtained, ex parte, a writ of attachment from the Clerk of the state court. The writ was executed by the County Sheriff. Citing its earlier holding in Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), that “[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting under color of law for purposes of [§ 1983],” the Court concluded that the second requirement had been met, “[w]hatever may be true in other contexts.” 457 U.S. at 942, 102 S.Ct. at 2756. Here, it may fairly be said that the growers were state actors because they acted together with and obtained significant aid from state officials. The growers employed Roland Saul, Jerry Smith and Don Davis as their attorneys in the civil suit. As discussed above, Saul was the Criminal District Attorney of Deaf Smith County. Smith and Davis were his assistants. Under Texas law: The Criminal District Attorney and his assistants shall have the right and it shall be their primary duty to represent the State of Texas in criminal and civil cases in the District Court and inferior courts of Deaf Smith County. He shall have and exercise in addition to the specific powers given and duties imposed upon him and his assistants by this Act, all powers, duties, and privileges within Deaf Smith County as are now by law conferred and which may hereafter be conferred on County Attorneys and District Attorneys in various counties and judicial districts of this State relative to criminal and civil matters for and in behalf of the County and the State of Texas. Tex.Rev.Civ.Stat.Ann. art. 326k-64 (Vernon 1973) (emphasis added). Of course, simply retaining as counsel a person who also serves as a county or district attorney does not mean that a private litigant is acting under color of state law in any subsequent litigation. Here, Saul’s, Smith’s, and Davis’ civil representation closely interlocked with their criminal prosecution duties. The picketing statutes authorize county or district attorneys to institute suits for injunctive relief for picketing violations. Arts. 5154f, § 5; 5154g, § 5. The mass picketing and secondary picketing statutes provide misdemeanor criminal sanctions for their violation. Arts. 5154d, § 5; 5154f, § 3. The same conduct which will support a civil suit by a private litigant for injunctive relief and damages will also support a criminal prosecution or a suit for injunctive relief brought in the name of the State. Jerry Smith served as lead counsel for the growers. He handled both his private practice and his assistant criminal district attorney’s duties out of the firm offices of Saul, Smith & Davis. While preparing the growers’ state court petition, he telephoned Gilbert Pena, an attorney with the County and State Division of the Attorney General’s office in Austin to discuss the enforceability and constitutionality of the picketing statutes. (This appears to be the same Gilbert Pena who represented the State of Texas and signed the final judgment on behalf of the State in the Medrano litigation, discussed in Part IX of this Opinion, infra.) Smith testified that he asked for relief based on the mass picketing statute “because of the advice given me by the Attorney General’s office.” Smith also testified that it was Pena who first suggested asking for a TRO. Because of the “totality of the facts,” Smith decided on a private civil suit instead of a criminal prosecution or an injunctive relief suit brought on behalf of the State. A probable consideration in this decision was his ability to bill the growers for private representation, something he could not do for discharging his public duties. Smith’s consultation with the Attorney General’s office could only have been in his official capacity as an Assistant Criminal District Attorney for Deaf Smith County. Under Art. 4399, the Attorney General may “advise the several district and county attorneys of the State, in the prosecution and defense of all actions in the district or inferior courts, wherein the State is interested, whenever requested by them,” but is expressly prohibited from “giving legal advice or written opinions to any other than the officers or persons named herein.” Private civil counsel are not named in the statute. Roland Saul had conversations with several deputy sheriffs to find out what was happening on the picket lines, with an interest from both the civil side and “the law enforcement angle.” He obtained affidavits from two deputies, which were used to support the issuance of the TRO. Don Davis met with deputies during the strike to explain the trespass and picketing laws, including the 50-foot spacing rule in the mass picketing statute. Larry Burlsmith, an investigator employed by the Criminal District Attorney’s office, who is authorized to make arrests and has “all the rights and duties of a peace officer in criminal cases,” Art. 326k-64, § 4, went to view the picket lines on his work time and reported his observations to Saul. He accompanied Sheriff McPherson when the TRO was served on TRLA. McPherson and his deputies served the TRO on the various state court defendants. After the TRO’s issuance, county deputies continued to observe and videotape the picketers. After the sheriff’s department’s videotape equipment broke down, the Texas Citrus & Vegetable Growers Association, one of the state court plaintiffs, loaned the sheriff’s department some equipment they had brought up from the Valley. The Court concludes that the growers were acting under color of state law. They acted together with and obtained significant aid from state officials, including the Criminal District Attorney’s office, the sheriff’s department, and the Texas Attorney General’s office. As the Fifth Circuit has said, “[t]he application of the tests for state action is not mechanical____ State action may manifest itself in a wide variety of forms, some of which do not fit neatly in any category." Roberts v. Louisiana Downs, Inc., 742 F.2d 221, 224 (5th Cir. 1984). 2. Deprivation of Rights. (a) 1st Amendment, Substantive If Texas law required Moya to abide by the terms of the TRO, then his First Amendment rights clearly would have been infringed for the reasons discussed in Part XI of this Opinion, infra, relating to the constitutionality of the picketing statutes. Moya argues that he had no choice but to obey the TRO after it was issued because defiance would have led to contempt proceedings in which his constitutional claims could not have been raised. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). This is not the law in Texas. If Moya had violated the terms of the TRO, he could have raised his constitutional claims in the subsequent state court proceedings. Ex parte Pierce, 161 Tex. 524, 342 S.W.2d 424 (1961); Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834 (1958); Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588 (1948). In Henry, for example, the relators had been incarcerated for violating a temporary injunction enjoining them from picketing within 100 feet of some railroad tracks. There was no question that they had violated the terms of the temporary injunction. In an original habeas corpus proceeding, the Supreme Court of Texas found that: [W]hen the trial court ordered relators not to picket within 100 feet of the spur tracks when the railways were using or about to use them, he was abridging the right of free speech guaranteed them by the Constitution. So, in so far as the injunction judgment entered by the trial court attempted to restrain peaceful picketing at, near, across or within 100 feet of the railway tracks across Pickett Street, it is void____ [T]he order of commitment for contempt is likewise void. One cannot be punished for contempt for violating an order which a court has no authority to make. Id. 215 S.W.2d at 596-97. The relators were discharged from custody. Similarly, the relator in Twedell, another picketing injunction case, successfully raised his preemption argument in the Texas Supreme Court and was discharged from custody. At the same time, though, Moya could not have challenged the sufficiency of the evidentiary basis for the TRO in a contempt proceeding. Pierce, 342 S.W.2d at 427. The United States Supreme Court has recognized and applied this practice in reviewing decisions of the Texas Supreme Court. See, e.g., Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (reversing, on First Amendment grounds, the Texas Supreme Court’s denial of habeas corpus relief to a union organizer found in contempt for giving a speech in violation of a state district court’s temporary injunction); but see Vance v. Universal Amusement Co., 445 U.S. 308, 316, 100 S.Ct. 1156, 1161, 63 L.Ed.2d 413 (1980) (assuming Texas law to be otherwise). Nonetheless, even if one accepts that Moya’s ability to raise his constitutional claims in a contempt proceeding precludes classifying the TRO as a prior restraint on his speech, the facts of this case plainly disclose that Moya’s exercise of his First Amendment rights was chilled by the TRO. Thus those rights were violated. Where the use of coercive power is threatened, First Amendment rights may be violated by the chilling effect of governmental action that falls short of a direct prohibition against speech. The exercise of First Amendment freedoms may be deterred almost as potently by the threat of sanctions as by their actual application. Aebisher v. Ryan, 622 F.2d 651, 655 (2d Cir.1980) (citations omitted); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). The growers’ vigorous prosecution of the suit, their use of the Criminal District Attorney and his assistants as counsel, and the presence of sheriff's deputies with videotape equipment on the picket lines constituted an open threat of using the state’s coercive power. As one scholar has commented: Even if the [constitutional claims could be raised in a contempt proceeding], it might well remain the case that prepublication restraints, especially those affirmatively singling out the would-be disseminator, would deter far more protected conduct than criminal statutes ordinarily would. The latter is essentially a mute, impersonal threat; being told personally not to publish is apt to cause more second thoughts—no matter what defenses are ultimately available. L. Tribe, American Constitutional Law, § 12-32 at 726 n. 2 (1978). Accord, Bernard v. Gulf Oil Co., 619 F.2d 459, 469 n. 15 (5th Cir.1980) (en banc), aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) (“One who may be willing to violate a statute, and thus risk criminal penalties, may be less willing to act in direct defiance of an injunction or court order and thus subject himself to the court’s potential contempt power.”) This case exemplifies such a situation. The criminal sanctions in the picketing statutes failed to deter the picketers, but the TRO, which essentially prohibited no more than the statutes, dramatically reduced Moya’s exercise of his First Amendment rights. The TRO intimidated many of the picketers, causing them to return to work in the fields. At a time when creating trust and confidence in the TFWU was essential, Moya could hardly risk a contempt citation. As noted above, after the TRO issued, even some TFWU officers questioned Moya’s ability to organize peacefully. Any protracted contempt proceedings would have destroyed the immediacy of Moya’s picketing and speeches because of the short term of the onion harvest season. “First Amendment rights are often lost or prejudiced by delay.” Id. at 470. (b) 1st Amendment, Procedural Moya also claims that the ex parte procedure used by the growers to obtain the TRO violated his First Amendment rights. In Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968), members of a “white supremacist” organization called the National States Rights Party held a public rally in the town of Princess Anne at which they gave agressively and militantly racist speeches directed at Blacks and Jews. Because of the tense atmosphere, more than 60 police officers were present to keep the peace. At the end of the rally, the organizers announced that another rally would take place the following night, at which time they would “raise a little bit of hell for the white race.” The next day, city and county officials sought and obtained a court order restraining the organizers from holding another rally for ten days. The order was issued ex parte, with no notice to the organizers, or even any informal communication with them. The Supreme Court concluded that the procedure followed in obtaining the restraining order infringed on the organizers’ First Amendment rights: The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate. Id. at 180, 89 S.Ct. at 351. The TRO in this case was issued ex parte, without formal or informal notice to Moya or his attorneys. Jerry Smith, who spent upwards of five hours at the courthouse in Hereford trying to obtain the TRO, testified at trial as to why no notice was given: Q. Did you at any of that ... during any of that time give notice to TRLA you were seeking a restraining order? A. No, sir. Q. Why not? A. My experience in dealing with them in the past, it would have done absolutely no good to visit with them. They will not compromise in any respect, will not rationally discuss anything in any respect____ Q. Now, aside from the hearing on temporary injunction, I take it, you did not read [Tex.R.Civ.P. 680] to suggest you should give notice of the seeking of a temporary restraining order so that counsel who wished to oppose it could be heard, at least, in chambers or in conference? A. I believe that was up to the Court. Q. Not up to you? You don’t have an obligation under the Rules? A. I believe that’s up to the Court to decide. Q. And I ask you, do you have an obligation under the Rules? A. No, sir. The TRLA offices in Hereford are within walking distance of the courthouse. Nothing prevented Smith from giving notice. Instead, he made no attempt whatsoever. The Court concludes that the procedure followed in obtaining the TRO violated Moya’s First Amendment rights. (c) 6th Amendment Moya asserts that the TRO also deprived him of his Sixth Amendment right to counsel. This contention is without merit. The Sixth Amendment right to counsel attaches at the time adversary judicial proceedings are initiated by way of formal charge, preliminary hearing, indictment, information or arraignment. See Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972). The express terms of the Amendment limit its protections to criminal prosecutions. Since no criminal prosecution was initiated against Moya during the time relevant here, his Sixth Amendment right to counsel never attached and, thus, he could not have been deprived of that right. (d) Legal Services Corporation Act Moya finally contends that the growers deprived him of his statutory right to free legal counsel under the Legal Services Corporation Act, 42 U.S.C. § 2996, et seq. (1982). A deprivation under color of state law of a right secured by the laws of the United States is actionable under § 1983. Maine v. Thiboutot, 448 U.S. 1, 4,100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). There are two exceptions to this principle: (1) “[wjhen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983,” Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981); and (2) there is no remedy under § 1983 if the statute violated is not of the kind that creates enforceable “rights” under § 1983, id. at 19, 101 S.Ct. at 2626. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981); Irby v. Sullivan, 737 F.2d 1418, 1428 (5th Cir.1984). To establish the first exception: [T]he burden is properly placed on the defendant to show that Congress, in enacting the particular substantive statute at issue, intended an exception to the general rule of § 1983. A defendant may carry this burden by identifying express statutory language or legislative history revealing Congress’ intent to foreclose the § 1983 remedy, or by establishing that Congress intended that the remedies provided in the substantive statute itself be exclusive. Sea Clammers, 453 U.S. at 27 n. 11, 101 S.Ct. at 2630 n. 11 (Stevens, J., concurring and dissenting); cf. id. at 20 n. 31, 101 S.Ct. at 2626 n. 31. The growers have not suggested that this exception applies and, thus, have not carried the burden of establishing its applicability. With respect to the second exception, the question is whether the Legal Services Corporation Act creates rights which are enforceable under § 1983. The Legal Services Corporation was established by Congress in 1974 as a private, nonmembership nonprofit corporation in the District of Columbia to provide “financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistanee.” 42 U.S.C. § 2996b(a). The Corporation itself does not provide legal assistance. It provides financial assistance, through annual Congressional appropriations received by the Corporation, to qualified programs furnishing legal assistance to individuals who qualify under financial eligibility criteria prescribed by the Corporation. 42 U.S.C. §§ 2996e(a)(l) & 2996f(a)(2). TRLA is a nonprofit Texas corporation and a recipient of funds from the Corporation. As a recipient, it was responsible for establishing the maximum annual income level for persons to be eligible to receive legal assistance, and priorities for the allocation of its resources. 45 CFR §§ 1611.3 & 1620 (1980). Any “right” of Moya to receive legal aid depended on his meeting the eligibility criteria established by TRLA, within the regulatory guidelines, and presenting a need of sufficient priority for TRLA to allocate resources to his representation. A client who feels that he has improperly been denied legal services may pursue an administrative client grievance procedure, 45 CFR § 1621 (1980), but he cannot sue in federal court. Nabke v. U.S. Department of Housing and Urban Development, 520 F.Supp. 5 (W.D.Mich.1981). Similarly, there is no private cause of action under the Act for persons aggrieved by violations of the Act. Grassley v. Legal Services Corp., 535 F.Supp. 818 (S.D.Iowa 1982). The Act is designed to provide a mechanism for funding legal assistance to those unable to afford it. The Act does not create in the indigent any right to legal services which is enforceable under § 1983. See Pennhurst, 451 U.S. at 18-20, 101 S.Ct. at 1540-41 (no enforceable rights arising from “bill of rights” provision of the Developmentally Disabled Assistance and Bill of Rights Act of 1975); Boatowners and Tenants Association v. Port of Seattle, 716 F.2d 669 (9th Cir.1983) (no enforceable rights arising from the River and Harbor Improvements Act); Perry v. Housing Authority of the City of Charleston, 664 F.2d 1210, 1217 (4th Cir.1981) (“The plaintiffs have not pointed to any substantive provisions of the various housing acts which give them any tangible right, privilege, or immunity”). Even if the Court assumes that Moya had such an enforceable right, no deprivation could be found. Moya’s counsel removed the state suit to federal court the day it was filed. The next day, they moved to dissolve or modify the TRO; filed an opt-in FLSA class action alleging minimum wage violations against the Howard Gault Co., one of th