source: Caselaw Access Project

author: J. SHELLY WRIGHT, Circuit Judge.

license: Public Domain

text:
    GRUMMAN AIRCRAFT ENGINEERING CORPORATION v. The RENEGOTIATION BOARD, Appellant
    No. 71-1730.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 27, 1973.
    Decided July 3, 1973.
    Rehearing Denied Sept. 27, 1973.

      Irwin Goldbloom, Atty., Dept, of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, Harold H. Titus, Jr., U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief, for appellant.
    Tom M. Schaumberg and Rexford T. Brown, Washington, D. C., for appellee.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and VAN PELT, Senior District Judge.

       Of the United States District Court for the District of Nebraska, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   J. SHELLY WRIGHT, Circuit Judge.

This appeal involves the validity of a District Court order requiring the Renegotiation Board to disclose documents explaining decisions of the Board and its decision-making delegates, the Regional Boards, made between 1962 and 1965, as to whether 14 companies accrued excess profits in their business with the Government. These documents were sought by Grumman Aircraft Engineering Corporation under the Freedom of Information Act, 5 U.S.C. § 552 (1970), which mandates that Government agencies, including the Renegotiation Board, make available for public inspection and copying “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases * * *.” 5 U.S.C. § 552(a)(2)(A). The Act also requires disclosure of “identifiable records,” 5 U.S.C. § 552(a)(3), but exempts from the disclosure requirement certain specified materials, 5 U.S.C. § 552(b)(l)-(9).

This is the second time this case is before us. Initially the District Court refused to order disclosure on the ground that the requested documents contained trade secrets and other confidential information covered by the Act’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U.S.C. § 552(b) (4). On appeal we held that Congress did not intend to exempt an entire document simply because it contained confidential information, that the proper procedure where exempted data is contained in the requested documents is to accommodate the Freedom of Information Act’s dual policy of promoting public awareness and administrative fairness, on the one hand, and the need for justifiable secrecy on the other, by striking identifying details from the documents prior to release. We remanded the case to the District Court for further proceedings to determine precisely which of the documents or parts thereof sought by Grumman should be produced under the Act. Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578 (1970).

On remand the Board agreed to produce many of the documents requested, but disagreement remained as to whether certain documents generated by the Board and its statutorily authorized decision-making delegates, the Regional Boards, in the decision-making process were “final opinions, including concurring and dissenting opinions,”' producible under 5 U.S.C. § 552(a)(2)(A) or, as appellant contends, inter- or intra-agency memoranda exempt from production under 5 U.S.C. § 552(b)(5). The District Court’s opinion, D.D.C., 325 F.Supp. 1146 (1971), describes at length the kinds of documents at issue and holds that the documents requested by Grumman should be produced under the Freedom of Information Act as “final opinions, including concurring and dissenting opinions,” of the Renegotiation Board. Given the evident care of the District Court’s delineation of the facts and its discussion of the issues, we avoid covering the same ground. We hold its findings of fact not clearly erroneous and concur in its conclusions and its judgment. Indeed, we find its judgment as to the principal documents still in dispute supportable on two additional grounds.

I

The District Court ordered disclosure of Regional Board reports in Class A renegotiation cases where pursuant to Renegotiation Board regulations (a) the Regional Board decides that a clearance, or finding of no excess profits liability, is proper; (b) the Renegotiation Board (hereinafter the National Board) notifies the Regional Board that “it is in accord with the [Regional Board’s] determination”; and (c) the Regional Board issues a notice to the contractor under investigation of his non-liability. These reports, which the District Court found were “prepared and signed by a Regional Board member, and [were] signed on behalf of the Regional Board by its Chairman,” 325 F.Supp. at 1153, were held by the District Court to be a “final opinion of the [National] Board,” ibid., and thus required to be produced under the Freedom of Information Act.

The National Board strongly challenges this disposition on the ground that the Regional Boards are merely advisory to the National Board, that the National Board is in fact the final decision-maker in cases of this sort, and, finally, that the unrecorded and undisclosed reasons for the National Board’s agreement with the Regional Board’s finding might have been different from those contained in the Regional Board report. As the District Court’s opinion indicated, this argument loses much of its force when one considers the perfunctory nature of the National Board’s review in such cases, the fact that in cases of this sort the National Board, in accepting the determination of the Regional Board, rejects the alternative of assigning the case to its own docket for independent consideration by a division of its membership, and the fact that the determination reflected in the clearance notice to the contractor is attributed to “the Regional Board pursuant to due delegation of authority” under National Board regulations.

Conceding, arguendo, that the Regional Board report is not tantamount to a “final opinion” of the National Board, we have no doubt that it does represent the “final opinion” of the Regional Board. Not only is the report, as the District Coui’t found, “prepared and signed by a Regional Board member, and * * * signed on behalf of the Regional Board by its Chairman,” 325 F.Supp. at 1153, but the practicalities of National Board procedure dictate this conclusion. When the Regional Board decides that a clearance should be granted in the type of case at issue here, the report is the only document in the file it forwards to the National Board which purports to justify the Regional Board’s clearance i-ecommendation in terms of the statutory standards the National Board is required to apply to the facts of the case. And the National Board itself acknowledges that the report is treated at the National Board level as the Regional Board’s justification of its recommendation. Given this function, plus the formal role it is assigned in the National Board’s regulations, 32 C.F.R. § 1473.-2(a), and the District Court’s findings, the Regional Board report clearly occupies the same opinion status as any document produced by a decision-maker in an adjudicatory-like process and forwarded to a reviewing tribunal.

For purposes of the Freedom of Information Act, the crucial question then becomes whether the Regional Board, wholly apart from the National Board, is to be considered an “agency” to which the provisions of the Act, including the requirement of disclosure of “final opinions,” applies. Compare Soucie v. David, 145 U.S.App.D.C. 144, 149-153, 448 F.2d 1067, 1072-1076 (1971), with International Paper Co. v. FPC, 2 Cir., 438 F.2d 1349, 1359, cert. denied, 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56 (1971). We believe the Regional Board should be so considered.

The statutory definition of “agency” in the Freedom of Information Act is supplied in Section 2 of the Administrative Procedure Act, 5 U.S.C. § 551(1) (1970), which states: “ ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency * * *_» This statutory language obviously disposes of any contention that the Regional Board cannot be considered an “agency” merely because it is subject, in the kinds of cases for which the reports are sought here, to de novo review by the National Board. But beyond that the provision is hardly self-defining, as both this court and commentators, have acknowledged.

We believe that several broad guidelines as to the meaning of the term “agency” have emerged and that they compel the conclusion that the Regional Boards fit within the APA definition. The leading case, of course, is Soucie v. David, supra, where we held that the Office of Science and Technology in the Office of the President is to be considered ah “agency” for the purposes of Section 2 of the Administrative Procedure Act and therefore for the Freedom of Information Act. Soucie, relying on the legislative history of the APA, reasoned that the “APA apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions.” 145 U.S.App.D.C. at 150, 448 F.2d at 1073. We then concluded that OST met this broad standard and was not to be considered merely personal staff to the President. We relied on several factors for this conclusion, including indications that Congress, in acquiescing in the presidential reorganization plan that created OST, believed that the unit would assume the independent administrative function of evaluating congressionally approved federal scientific programs. 145 U.S.App.D.C. at 151-152, 448 F.2d at 1074-1075.

The factors we relied on in Soucie to conclude that OST was an “agency” for purposes of the Administrative Procedure Act and thus for purposes of the Freedom of Information Act are clearly evident in this case. There is no question that the Regional Boards have been granted what Soucie termed “substantial independent authority.” Equally, the Regional Boards fit the functional definition of “agency” proposed by the commentator who has given the question the most exhaustive study, Professor James O. Freedman. He argues that the primary task in applying the term “agency” is “to identify centers of gravity of the exercise of administrative power * * where substantial ‘powers to act’ with respect to individuals are vested.” The National Board regulations, setting forth the powers of the Regional Boards, point unmistakably to an affirmative conclusion in this respect as well. The Regional Boards have their own investigating and negotiating personnel with whom the contractors are instructed to discuss their excess profit liability prior to decision of their cases by the Regional Boards.

Following these investigations and negotiations, moreover, the members of the Regional Board are instructed to make a formal recommendation as to the contractor’s excess profit liability and this recommendation is communicated openly to the contractor prior to any assumption of jurisdiction by the National Board. Furthermore, in many cases the Regional Boards are empowered to make final decisions not even reviewable by the National Board. In other words, the Regional Boards serve as a discrete, decision-producing layer in the renegotiation process. And this is the case from the standpoint of the National Board, which often, but not always, reviews their decisions, as well as frqm the standpoint of the regulated parties, the contractors, who conduct negotiations with the Regional Boards and are communicated the Regional Board’s conclusions prior to and separate from any possible subsequent negotiations or decisions at the National Board level.

It is also clear to us that the exercise of formal decision-making power by the Regional Boards, as authorized by delegation from the National Board, was within Congress’ contemplation when it established the Renegotiation Board apparatus. Evidence that Congress believed the governmental body in question would exercise authority of the kind customarily granted legislatively was an important factor in Soucie, as we have pointed out, and we believe it exists in ample measure here. In fact, we need go no further than the Renegotiation Act of 1951 itself for a conclusive indication that Congress foresaw and approved creation of Regional Boards with the kind of decisional authority we feel is sufficient to hold that the Regional Boards are “agencies.” Section 107(d) of the statute, 50 U.S.C.App. § 1217(d) (1970), provides in pertinent part:

“The Board may delegate in whole or in part any function, power, or duty (other than its power to promulgate regulations and rules and other than its power to grant permissive exemption * * *) to any agency of the Government, including any such agency established by the Board, and may authorize the successive redelegation, within limits specified by it, of any such function, power, or duty to any agency of the Government, including such agency established by the Board. * -*

(Emphasis added.)

There is further reason to believe that Congress meant the term “agency” in the above quoted statute — describing the subsidiary decision-making bodies now known as Regional Boards — to have the same meaning as the .term has in Section 2 of the APA. For Congress, in establishing the Renegotiation Board, had the detailed requirements of the APA at the forefront of its concern. In another section of the Renegotiation Act of 1951, 50 U.S.C.App. § 1221 (1970), it specifically excluded the Board’s functions from the operation of the APA with one important exception, the APA’s public information provision, which is now, of course, the Freedom of Information Act. Given this legislative attention to the APA, the choice of the word “agency” must have been purposeful, lending further support to our view that the Regional Boards are covered by the term “agency” utilized in the APA and thus must be considered “agencies” for purposes of the Freedom of Information Act.

The National Board’s own regulations corroborate the conclusion that the Regional Boards, apart from the National Board, are agencies subject to the Freedom of Information Act. And the National Board’s own view of its responsibilities, as evidenced in its regulations, is entitled to considerable weight in interpreting the relevant statutes. See, e. g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The regulations acknowledge that pursuant to the Freedom of Information Act all clearances and agreements determining excess profits must be disclosed. 32 C.F.R. § 1480.5 (1972). In many cases these decisions to issue clearances or make agreements with contractors are solely the Regional Board’s decisions and no review whatever is undertaken by the National Board. Thus the regulations clearly subject to the requirements of the Freedom of Information Act documents that represent administrative actions whether taken by the National Board or exclusively by the Regional Boards. This suggests to us that the National Board itself, for some purposes at least, considers the Regional Boards “agencies” separately subject to the Freedom of Information Act’s provisions.

Since we conclude that the Regional Board reports at issue here should be considered “final opinions” of an “agency” and thus subject to disclosure under 5 U.S.C. § 552(a)(2)(A), it necessarily follows that the documents cannot be exempted from disclosure as “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” under Exemption 5 of the Act, 5 U.S.C. § 552(b) (5). Obviously, the two sections are mutually exclusive. By definition “final opinions, including concurring and dissenting opinions” cannot be “inter-agency or intraagency memorandums.”

Exemption 5 is simply irrelevant to final agency opinions because such opinions are decisional documents rather than purely pre-deeisional, consultative and deliberative inter- or intra-agency memoranda. See Section II infra. The fact that determinations by the Regional Boards are in some cases reviewable by the National Board does not make the Regional Board reports on which they are based inter- or intra-agency documents under Exemption 5 and thus not disclosable final opinions of the Regional Boards, any more than lower court opinions subject to appeal are not final. Indeed, finality is ordinarily the touchstone of appealability. See, e. g., 5 U.S. C. § 704 (1970); 28 U.S.C. § 1291 (1970). Moreover, the Administrative Procedure Act specifically provides that an “agency” may be reviewable by another agency, 5 U.S.C. § 551(1) (1970), and the Freedom of Information Act requires disclosure of final orders and opinions of “each agency,” 5 U.S.C. § 552(a)(2)(A), whether or not reviewable by another agency.

II

We also believe the District Court’s decision can stand for reasons other than the status of Regional Board reports as “final opinions, including concurring and dissenting opinions.” The Freedom of Information Act mandates disclosure of a far broader category of agency papers. 5 U.S.C. § 552(a)(3) calls for production of “identifiable records.” There is no question that the Regional Board reports fit into this category, as Grumman pointed out in its original pleadings. No argument has been made by the Renegotiation Board that the papers were not “identifiable” or that Grumman’s request was insufficiently specific. The nature of the documents and the naming of the companies and subject matter concerned and the dates when they were prepared make clear that the Government could identify them without inordinate difficulty. See National Cable Television Assn v. FCC, 156 U.S.App.D.C. 91, 479 F.2d 183 (1973); Irons v. Schuyler, 151 U.S.App.D.C. 23, 465 F.2d 608, cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972). And it is settled that once the “identifiability” requirement is met, as it is here, the central question remaining in Freedom of Information Act litigation is whether any of the Act’s exemptions apply. See Bristol Myers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970).

As we have indicated, appellants rely on Exemption 5. In our view this exemption for “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” does not apply to the documents at issue, wholly apart from their status as “final opinions.” We reach this conclusion on the ground that the policies underlying the exemption are simply not jeopardized by disclosure of the documents Grumman seeks here.

At the outset we must acknowledge that “[d] rawing such a line between what may be withheld and what must be disclosed is not without difficulties.” EPA v. Mink, 410 U.S. 73, 86 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). At the same time it seems clear that Congress, in enacting the exemption, did not mean for agencies to refuse disclosure of documents merely on the ground that such documents were customarily circulated only within the bureaucracy. See Bristol Myers Co. v. FTC, supra, 138 U.S.App.D.C. at 26, 424 F.2d at 939. If agency custom were the touchstone for applicability of the exemption, the pro-disclosure policy of the Act would be easily evaded. As its language indicates, the exemption is intended to adopt an evidentiary privilege that preceded the Freedom of Information Act. The statutory modification of the phrase “inter-agency or intra-agency memorandums or letters” with the phrase “which would not be available by law to a party other than an agency in litigation with the agency” makes clear the Act’s adoption of a pre-existent privilege from discovery, and this court has so held. Ackerly v. Ley, 137 U.S.App.D.C. 133, 138, 420 F.2d 1336, 1341 (1969). See also EPA v. Mink, supra, 410 U.S. at 87-90, 93 S.Ct. 827; Tennessean Newspapers, Inc. v. FHA, 6 Cir., 464 F.2d 657, 660 (1972); GSA v. Benson, 9 Cir., 415 F.2d 878, 880 (1969). And this privilege, it is also clear, aims to further a discrete set of policies. See Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 944-947, 141 Ct.Cl. 38 (1958); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, D. D.C., 40 F.R.D. 318, 324-327 (1966), affirmed per curiam, 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967).

The case law involving the privilege for governmental papers which underlies Exemption 5 indicates that the purpose of nondisclosure is protection of the “consultative functions” of government. EPA v. Mink, supra, 410 U.S. at 87-90, 93 S.Ct. 827. The privilege aims to cover “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, supra, 40 F.R.D. at 324. Put another way, the privilege aims to protect “free discussion of prospective operations and policy.” Kaiser Aluminum & Chemical Corp. v. United States, supra, 157 F.Supp. at 947. Protecting the confidentiality of advice given during governmental deliberations prior to actual promulgation of policy is, of course, eminently sensible. For it is well recognized that pre-decisional deliberation requires privacy so that staffers and decision-makers alike may engage in free and frank consideration of alternatives. Moreover, as this court suggested recently in Sterling Drug Inc. v. FTC, 146 U.S.App.D.C. 237, 245-247, 450 F.2d 698, 706-708 (1971), the public might be misled by exposure to discussions occurring before policy affecting it were actually determined. And finally, delving into predecisional policy deliberations impairs the integrity of decision-makers; officials should be judged by what they decide, not for the matters they properly considered before making up their minds.

But the case for applying the privilege, and thus the exemption, is markedly weaker where the documents at stake are not solely part of the consultative and deliberative process, but rather reflect actual decisions communicated outside the agency. Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, supra, for example, stressed that the documents sought in that case were “pre-decision data.” Professor Davis has put the matter well, arguing that the exemption should apply only to “papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 797 (1967).

This limitation is supported by the House Committee Report on the Freedom of Information Act which stressed that “a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause [Exemption 5] is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy.” H.R.Rep.No.1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.) And the policies supporting Exemption 5 as well as its predecessor privilege — the practical need for privacy in the formulation of policy, avoiding misleading the public, and judging officials for what they actually decide rather than what they say or write to themselves beforehand — are not jeopardized when, after a decision has been communicated to the public by a decision-maker, a document whose whole purpose and effect, as with the Regional Board reports, here, are to support that decision is disclosed. See Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv.L.Rev. 1047, 1057-1061 (1973).

Thus for purposes of applying Exemption 5 we believe a distinction must be drawn between documents composed exclusively for purposes of assisting policy formulation and those which serve to reflect policy already made and announced. Cf. Tennessean Newspapers, Inc. v. FHA, supra, 464 F.2d at 660-661. Indeed, in view of our obligation “to delimit the exception as narrowly as consistent with efficient Government operation,” EPA v. Mink, supra, 410 U.S. at 89, 93 S.Ct. at 837, quoting S.Rep. No. 813, 89th Cong., 1st Sess., 9 (1965), it is incumbent on us to enunciate such a limitation. Of course, the line is not always a bright one. Some papers can serve both functions — assisting pre-deci-sional deliberation and unambiguously rationalizing announced decisions. For example, in American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1969), what began as a staff memorandum in the pre-decisional stage was transformed into a document that had to be disclosed by the agency’s admission in its publicly communicated order that its decision was based on the memorandum.

In other cases, the basis of the decision may not be so openly admitted. But the difficulty of line-drawing between documents that reflect only predecisional deliberation and those which reflect decisions communicated to the public should not eviscerate the principle. And the principle is a simple one: a document which a decision-maker treats as justification for a decision communicated outside the bureaucracy to regulated parties should not be shielded from public disclosure on the ground that it was originally prepared for purposes of pre-decisional consultation, because the agency has customarily not disclosed the document, or because the agency labels the document other than what it really is. Therefore, since the Regional Board reports clearly reflect and are used to justify decisions of the Regional Board communicated to the contractors under scrutiny, they must fall outside the scope of Exemption 5 and should be disclosed as “identifiable records.”

Ill

Several weeks after the District Court’s opinion rejecting the Government’s argument that the documents Grumman sought should remain privileged under Exemption 5 was issued, the Government moved for rehearing under Rule 59, Fed.R.Civ.P., requesting the District Court to consider a formal claim of executive privilege by the chairman of the Renegotiation Board for the first time during the litigation. In our view, the District Court properly denied the motion for rehearing as untimely without considering its merits.

Ordinarily Rule 59 motions for either a new trial or a rehearing are not granted by the District Court where they are used by a losing party to request the trial judge to reopen proceedings in order to consider a new defensive theory which could have been raised during the original proceedings. Echevarria v. United States Steel Corp., 7 Cir., 392 F.2d 885, 892 (1968); Rue v. Feuz Construction Co., D. D.C., 103 F.Supp. 499, 502 (1952). See also 6A J. Moore, Federal Practice ¶ 59.07 (1972). The Government attempts to avoid applicability of this well established principle, one that is required for the orderly disposition of judicial business, by arguing that it had no “occasion” to raise the executive privilege claim before the District Court opinion was handed down.

We disagree. First of all, the Government had sufficient “occasion” to raise all its legal claims long before the District Court took the case under advisement. On remand from this court’s original decision, the District Court ordered a deposition taken from the chairman of the Renegotiation Board to shed more light on the Board’s deci-sional process to help the court determine whether the documents sought were final opinions. During the deposition proceedings the Board chairman argued, as the Government does here, that allowing production of the documents sought by Grumman would mean disclosure of what he felt were essentially advisory, consultative papers. But the Government chose not to argue executive privilege in the memorandum of points and authorities subsequently submitted to the court or in oral argument before the District Court. It could not have been unaware of the possible relevance of executive privilege to its case, for it did invoke Exemption 5 of the Freedom of Information Act. And the history and language of that exemption make clear that Congress did intend to codify at least some components of the executive privilege doctrine as it had been applied in pre-Freedom of Information Act cases. See Ackerly v. Ley, supra, 137 U.S.App.D.C. at 138, 420 F.2d at 1341. Since we cannot disturb the District Court’s ruling on a Rule 59 motion absent a finding of abuse of discretion, see Atchison, Topeka & Santa Fe R. Co. v. Jackson, 10 Cir., 235 F.2d 390, 394 (1956); Mayer v. Higgins, 2 Cir., 208 F.2d 781 (1953); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), plainly no reversal is called for.

We are asked to hold that the ordinary standards governing a District Court’s decision on a Rule 59 motion have no application because of the unique nature of an executive privilege claim. Properly noting that executive privilege, like the narrower privilege against disclosure of military secrets, “is not to be lightly invoked,” United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953), the Government says that it follows that the rule requiring clearly available defenses raised in time for trial courts to pass on them in the normal course of proceedings has no place. We are given no reasoning or serious policy arguments to support this conclusion. Just because the assertion of executive privilege, with its constitutional overtones, is a matter of obvious gravity, see Soucie v. David, supra, 145 U.S.App.D.C. at 149, 448 F.2d at 1072, and like any constitutional claim should not be used to dispose of a case where a statutory claim can do equal service, it hardly follows that the Government should be allowed to play cat and mouse by withholding its most powerful cannon until after the District Court has decided the case and then springing it on surprised opponents and the judge. In saying this, we do not mean to suggest that this particular cannon, in the context of this case, is any more than a popgun. If the claim were indeed of such gravity as the Government now suggests, we can only wonder why the Government failed to' alert the District Court in a less extraordinary manner.

Affirmed.

      . The 14 firms are: Avco Corp.; Bell Aerospace Corp.; The Boeing Co.; Douglas Aircraft Co.; Fairchild Hiller Corp.; General Dynamics Corp.; Ling-Temco-Vought, Inc.; Litton Industries, Inc.; Lockheed Aircraft Corp.; Martin Marietta Corp.; McDonnell Co.; North American Aviation, Inc.; Northrop Corp.; and Republic Aviation Corp.

      . We agree, of course, with the ruling and reasoning of the District Court requiring disclosure of reports and recommendations of divisions of the Renegotiation Board and any concurrences or dissents thereto. 325 F.Supp. at 1152-1153.

      . Cases are designated as Class A generally when a firm has derived from the Government contract under scrutiny more than $800,000 in profits. 32 C.F.R. § 1471.2(b) (1972). Where the contract has yielded less than $800,000 in profits, it is designated Class B. Itid. The documents sought here all involved Class A cases.

      . See 32 C.F.R. §§ 1472.3(i), 1473.2(a) (1972). Once the Regional Board has made its determination, it notifies the contractor thereof and forwards the case, along with the report at issue here, to the National Board. Itid.

      . 32 C.F.R. § 1473.2(a).

      . Ibid. The form of notice issued in such cases is printed at 32 C.F.R. § 1498.6(a) (1972).

      . The procedure followed in the kinds of cases producing the documents Grumman seeks here is in sharp contrast to the ease where the National Board is not satisfied with the Regional Board’s determination. In the latter case the National Board will notify the Regional Board “tha-t it has not satisfied itself that the determination is correct,” 32 C.F.R. § 1473.2(a), will “direct the Regional Board to advise the contractor that a different determination may be made,” ibid., and in many eases will “reassign the case to the Board.” Ibid. When this reassignment occurs, the case will generally be “assigned to a [3-man] division of the [5-man National] Board. The division will study the information and data assembled by the Regional Board and will determine what additional information or data, if any, is needed. The division will secure such additional information and data as it deems necessary and will conduct an independent study of the case. The division will not be bound or limited in any manner by any evaluation, recommendation or determination of the Regional Board.” 32 C.F.R. § 1472.4(b). The deposition giveu by the chairman of the National Board indicates that this sort of intensive, wholly de novo, review is not undertaken where the National Board does not reassign the case to its own docket but merely notifies the Regional Board that it agrees with its determination and orders the Regional Board to issue notice. Appendix at 26-27, 172-173.

      . 32 C.F.R. § 1498.6(a).

      . The statutory standards are set forth in the Renegotiation Board’s governing statute, 50 U.S.C.App. § 1213(e) (1)-(6) (1970). This court has termed the standards “rather general” and has noted that along with the Board’s regulations, see 32 C.F.R. § 1460.8 (1972), they vest the Board with “extremely broad discretion” in making a determination of excess profits. Bannercraft Clothing Co. v. Renegotiation Board, 151 U.S.App.D.C. 174, 178 n. 3, 466 F.2d 345, 349 n. 3 (1972), cert. granted, 410 U.S. 907, 93 S.Ct. 967, 35 L.Ed.2d 269 (1973).

      . Brief for appellant at 13.

      . Soucie v. David, 145 U.S.App.D.C. 144, 149-150, 448 F.2d 1067, 1072-1073 (1971).

      . Soucie v. David, supra note 11, 145 U.S.App.D.C. at 150, 448 F.2d at 1073.

      . See Freedman, Administrative Procedure and the Control of Foreign Direct Investment, 119 U.Pa.L.Rev. 1, 4-18 (1970). Professor Davis has characterized the definition of “agency” supplied in the statute as “not very satisfactory.” 1 IC Davis, Administrative Law Treatise § 1.01 at 1 n. 1 (1958). But the definition he suggests — “a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through cither adjudication or rule-making,” id. at 1 — is probably itself too narrow, as we suggested in Soucie v. David, supra note 11, 145 U.S.App.D.C. at 150, 448 F.2d at 1073. The Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act, drafted in 1967 just after the Freedom of Information Act was enacted, discusses the Act’s applicability to any “agency” as defined in 5 U.S.C. § 551(1), and suggests a broader definition: “every department, board, commission, division, or other organizational unit in the executive branch.” Id. at 4. It is clear that the Regional Boards, as part of the Renegotiation Board apparatus, are “in the executive branch,” 50 U.S.C.App. § 1217(a) (1970), and they are certainly organizational units. If the Renegotiation Act itself and the regulations mean anything, see text at pp. 714-715 infra, they would appear to meet the definition supplied by the Attorney General’s memorandum.

      . Compare International Paper Co. v. FPC, 2 Cir., 438 F.2d 1349, 1359 (1971) (holding that the staff of the FPC is not to be considered an agency for purposes of either the Freedom of Information Act or the APA on the ground that it lacks any legally recognized decision-making status). See also Miller v. Smith, S.D.N.Y., 292 F.Supp. 55 (1968).

      . See note 13 supra.

      . Freedman, supra note 13, 119 U.Pa.L.Rev. at 9.

      . See 32 C.F.R. § 1472.3.

      . 32 C.F.R. § 1472.3 (i).

      . Ibid.; 32 C.F.R. § 1473.2(a).

      . The Regional Boards are given this power in Class B cases, see note 3 supra, where it decides that a clearance should be granted, 32 C.F.R. § 1473.2(b), and where it has readied an agreement with the contractor that a given amount of excess profits should be refunded, 32 C. F.R. § 1474.3(b). Review by the National Board is mandatory in Class A cases whether the Regional Board decides a clearance should be granted, 32 C.F.R. § 1473.2(a), reaches an agreement with the contractor on a specified refund, 32 C.F.R. § 1474.3(a), or decides that a refund order should be issued and is unable to reach agreement with the contractor on a specified amount, 32 C.F.R. § 1475.3 (a) (1972). In Class B cases, where no agreement can be reached between the contractor and the Regional Board and the Regional Board determines that a refund of excess profits should be paid, the “[National] Board may review such determination upon its own motion, or, in its discretion, at the request of the contractor.” 32 C.F.R. § 1475.3(b).

      . See also Bannercraft Clothing Co. v. Renegotiation Board, supra note 9, 151 U.S.App.D.C. at 179, 466 F.2d at 350, where we characterized the Regional Board decisions as follows : “ [T] he recommendations made by the lower bureaucratic levels * * * are * * * exceedingly important to the contractor. Indeed, their importance derives from their non-finality, since it is the possibility that they will be reversed and increased which provides the incentive to accept them without resort to theoretically available de novo appeals.”

      . See note 20 supra.

      . See 32 C.F.R. §§ 1473.2(b), 1474.3(b) and the discussion in note 20 supra.

      . Joint Appendix at 41 in Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578 (1970).

      . See also Freeman v. Seligson, 132 U.S.App.D.C. 56, 69, 405 F.2d 1326, 1339 (1968).

      . See generally Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, D.D.C., 40 F.R.D. 318, 325 (1966); cf. Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The practical underpinnings of the need for pre-decisional privacy were well stated by Mr. Justice Reed in Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 945-946, 141 Ct.Cl. 38 (1958), where he pointed out: “Free and open comments on the advantages and disadvantages of a proposed course of governmental management would bo adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen.”

      . See Boeing Airplane Co. v. Coggeshall, 108 U.S.App.D.C. 106, 112, 280 F.2d 654, 660 (1960); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, supra note 26, 40 F.R.D. at 325-326. See also United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941).

      . 40 F.R.D. at 326. Similarly, in Kaiser Aluminum & Chemical Corp. v. United States, supra note 26, the Court of Claims stressed that the document the plaintiff unsuccessfully sought there in a breach of contract suit against the Government was a “memorandum * * * written by a Special Assistant to the War Assets Liquidator. His duties, at least so far as the contracts here involved are concerned, were confined to recommendations and advice on program policy. He played no part in the operative events involved in this case and had no relations or discussions with plaintiff or its competitor.” 157 F.Supp. at 943. But Mr. Justice Reed, speaking for the Court of Claims, noted that the claim of executive privilege there would rest on much weaker ground if the papers by the officials reflected actual, effective decisions : “If the Special Assistant played a part in operative events, e. g., determination of costs or values, representations to Kaiser or Reynolds or survey of the plants, a different situation might exist. We therefore consider this case on the basis of a refusal by the Administrator to produce an advisory opinion on intra-office policy in relation to the sales to Kaiser and Reynolds.” Id. at 944. See also United States v. Procter & Gamble Co., D.N.J., 25 F.R.D. 485, 489 (1960) (noting that the privilege should not apply when the Government document at issue “did not evidence an operative decision”).

      . We believe the line we draw between “pre-deeisional” and “decisional” doeu-ments is fully consistent with our decision in Sterling Drug Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971). There we held that memoranda of the FTC staff, which, unlike the Regional Boards, is not assigned any decisional responsibility, were privileged under 'Exemption 5. In the circumstances of 'that case, it was clear that the staff memoranda were not meant or likely to reflect accurately the agency decisions in which the plaintiffs were interested. Moreover, the staff-produced papers were clearly drafted for “consultative” purposes : some of them were written before the FTC members approved a merger and some were written after the merger approval but before the FTC initiated proceedings against a second merger and served to compare the tjvo mergers. Judge Tamm concluded that in such circumstances the dangers of misleading the public and embarrassing pre-decision communications between staff and decision-maker were apparent, and the FTC’s invocation of Exemption 5 was proper. But he made clear that he agreed with the comment in Chief Judge Bazelon’s concurring and dissenting opinion that if “the memoranda had been adopted as policy,” 146 U.S.App.D.C. at 252 n. 8, 450 F.2d at 713 n. 8, the exemption should not apply. 146 U.S.App.D.C. at 245, 450 F.2d at 706. On similar grounds Sterling Drug also held that two memoranda prepared by individual commissioners comparing the two mergers were not only purely consultative in nature, but were not likely to reflect fully the reasons either of the decision-makers voted to allow the previous merger. 146 U.S.App.D.C. at 246, 450 F.2d at 707.
      Of course, neither of the kinds of documents Sterling Drug held were covered by Exemption 5 could fairly be termed de-cisional in the sense that they were treated as the end product of the decision-maker’s deliberation and utilized to justify a decision openly taken. Disclosing papers of this sort, we have said, cannot be held to intrude on frank pre-decisional communications and deliberations whose exposure may be both misleading and embarrassing. Once there is solid reason to believe a paper is considered by a decision-maker to be the basis for his decision and utilized as a justifying document, it is clear the paper can no longer be said to demonstrate merely the preliminary deliberations of a decision-maker or his staff, on which publicity may have a future chilling effect, but acquires a more formal, finished status which a decision-maker should be more ready to have attributed to himself. See Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Ilarv.L.Rev. 1047, 1060-1061 (1973).

        Sterling Drug certainly recognizes this distinction. Judge Tamm’s panel opinion not only endorsed Chief Judge Bazelon’s “adoption as policy” test. Equally important, the court ordered the District Court on remand to consider disclosure of documents issued by the FTC as a whole to private parties indicating its approval of the first merger. Judge Tamm noted that with material of this sort “the danger that any exislanation they may give of [the initial merger] is not the correct one is greatly reduced. We also feel the policy of promoting the free flow of ideas within the agency does not apply here, for private transmittals of binding agency opinions and interpretations should not be encouraged.” 146 U.S.App. D.O. at 247, 450 F.2d at 708. In orn-ease, of course, the entire Regional Board reports are not ordinarily transmitted to regulated parties. But this difference is not crucial. Sterling Drug’s paramount significance for purposes of this case is its stress on two factors: the likelihood that the papers are accurate representations of what the decision-maker used as the basis for his action and the likelihood that distinctively pre-decisional communications will not be jeopardized. Put another way, this aspect of Sterling Drug and our decision today both deal with papers whose unmistakable effect is to indicate that the “free flow” of pre-de-cisional consultation has ceased and a decision has jelled.

      . This limitation is not the only well recognized limitation on Exemption 5. In EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Supreme Court, following the lead of Soucie v. David, supra note 11, and Bristol Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970), noted that even where a document does contain pre-decisional advice or recommendations it does not follow that the entire document may be suppressed. “[PJurely factual, investigative matters” also contained in the document may be disclosed under the Freedom of Information Act, so long as the advisory, policy-type materials are deleted. 410 U.S. at 87-94, 93 S.Ct. 827, 35 L.Ed.2d 119.


author: JAMESON, District Judge:

text:
    Miriam RODWAY et al., Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Appellees.
    No. 72-1906.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 6, 1973.
    Decided July 10, 1973.

      Ronald F. Pollack, New York City, with whom Roger A. Schwartz, New York City, and John R. Kramer, Washington, D.C., were on the brief, for appellants.
    David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Robert M. Werdig, Jr., Asst. U. S. Attys., were on the brief, for appellee.
    Before TAMM and WILKEY, Circuit Judges, and JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   JAMESON, District Judge:

Plaintiffs-appellants, members of nine low-income households, on behalf of themselves and others similarly situated, together with the City of New York, Commonwealth of Pennsylvania, and the National Welfare Rights Organization and its affiliates brought this action for declaratory and injunctive relief against the United States Department of Agriculture (USDA), the Secretary of Agriculture and other officials of the Department, for failure to comply with directives of the Food Stamp Act (7 U. S.C. §§ 20Í1, 2013(a) and 2016(a)) in refusing to establish coupon allotment levels that reflect “the cost of a nutritionally adequate diet”. The district court granted defendants’ motion for summary judgment, holding that the “issues raised in plaintiffs’ complaint are now moot” and that there “are now no material facts in dispute.”

Appellants seek a reversal of the order of the district court and a remand with instructions to enter summary judgment in their favor. Appellees contend that the district court properly dismissed the action as moot and that apart from the issue of mootness the summary judgment in their favor should be affirmed.

Food Stamp Act

The Food Stamp Program was established by the Food Stamp Act (7 U.S.C. §§ 2011-2025), enacted in 1964 and amended in 1971 As amended, Section 2013(a) reads:

“The Secretary is authorized to formulate and administer a food stamp program under which, at the request of the State agency, eligible households * * * shall be provided with an opportunity to obtain a nutritionally adequate diet through the issuance to them of a coupon allotment which shall have a greater monetary value than the charge to be paid for such allotment by eligible households. The coupons * * * shall be used only to purchase food from retail food stores which have been approved for participation in the food stamp program. Coupons * * * shall be redeemable at face value by the Secretary through the facilities of the Treasury of the United States.”

Section 2016(a), as amended, provides :

“The face value of the coupon allotment which State agencies shall be authorized to issue to any households certified as eligible to participate in the food stamp program shall be in such amount as the Secretary determines to be the cost of a nutritionally adequate diet, adjusted annually to reflect changes in the prices of food published by the Bureau of Labor Statistics in the Department of Labor.”

Under the Food Stamp Program, an eligible low-income household is issued coupons for the purchase of any food (except alcoholic beverages, tobacco and imported foods) at an approved retail store. §§ 2012(b), 2013(a). The household is required to pay a charge for the stamps, the amount depending upon the monthly net income of the household and may not exceed 30% of the household’s income. § 2016(b).

On July 29, 1971 the USDA issued new regulations pursuant to the 1971 Amendments to the Act. The Secretary of Agriculture determined that the “Economy Food Plan”, one of five standard Department of Agriculture family food plans, “will provide a nutritionally adequate diet to participating households.” The Secretary then determined the average cost of the Economy Food Plan in the United States and established food stamp coupon allotments at that level, taking into account variations in family size and regional price variations for Alaska and Hawaii.

While the new regulations increased the coupon allotments, they also increased the purchase requirements, with the result that for some households there was a net loss of benefits, since the higher purchase requirements decreased the difference between the price paid and the purchasing power of the coupons. On January 26, 1972 the USDA revised the purchase requirement schedule so that no participating household would “receive less net program benefits than it would have received under the regulations in effect prior to July 29, 1971.”

The instant action was filed after the promulgation of the new regulations on July 29, 1971. With the complaint plaintiffs filed a motion for an “immediate preliminary injunction”, contending that when the new regulations became effective in February, 1972 the individual plaintiffs would “lose a substantial amount of their food stamp benefits since the food stamp prices will sharply increase while the allotments remain inadequate and virtually unchanged”. The request for the preliminary injunction was withdrawn after USDA rolled back its price increases on January 26, 1972. 37 Fed.Reg. 1180.

Issue of Mootness

On April 6, 1972 defendants filed a motion to dismiss, or, in the alternative, for summary judgment. In an order entered July 6, 1972 the court granted “the motion of the defendants for summary judgment” and ordered the action dismissed. In a supporting memorandum, after reciting that plaintiffs had withdrawn their motion for a preliminary injunction, the court concluded:

“In view of this further revision of the food stamp regulations by the Secretary of Agriculture, it appears that the issues raised in plaintiffs’ complaint are now moot. Although plaintiffs now apparently argue, in opposition to defendants’ motion for summary judgment, that even these recent revisions reinstating the earlier food stamp benefit levels fail to fulfill the purpose of the Food Stamp Act, such an argument was not the gravamen of the complaint. The thrust of their complaint was directed against the regulations promulgated on July 29, 1971. Since those regulations have been changed, there are now no material facts in dispute and defendants’ motion for summary judgment should be granted.”

The complaint alleges that “the new monthly coupon allotments — established pursuant to the Economy Diet Plan — are violative of the Food Stamp Act since said allotments are considerably lower than the cost of obtaining an adequate nutritional diet.” It is clear from an examination of the complaint in its entirety and supporting memoranda that this is the “gravamen” of plaintiffs’ complaint.

In addition to challenging the sufficiency of the level of the coupon allotments, plaintiffs alleged that under the new regulations they would be forced to pay “significantly higher prices for their food stamps.” While the rollback in the price increases for stamps removed this cause of complaint and rendered this issue moot, it did not alter or render moot the more substantial claim that the allotment levels established by USDA failed to satisfy the requirements of the Act.

Contentions of Parties

Having concluded that the change in regulations promulgated January 26, 1972 did not render the action moot, we turn to the respective contentions regarding the propriety of summary judgment under the evidence presented to the district court.

Appellants now contend that “there are sufficient undisputed material facts to entitle them to judgment as a matter of law” on the ground that the “Food Stamp coupon allotments established by USDA fail to provide recipients with an opportunity to obtain a nutritionally adequate diet”. They recognize, however, that “as to some of the facts, particularly the regional cost differences, * * * there may be disputes”, and therefore argue in the alternative that there should be a remand for further factual inquiry.

In urging summary judgment in their favor, appellees contend that (1) Congress intended that USDA use the Economy Food Plan to implement the 1971 amendments to the Food Stamp Act; (2) Congress committed the determination of what constitutes a nutritional diet to the sole discretion of the Secretary of Agriculture, precluding judicial review; and (3) alternatively, judicial review is limited to the issue of whether the Secretary had a rational basis for his determination.

Judicial Review

Congress has clearly committed to the Secretary of Agriculture the determination of what constitutes a “nutritionally adequate diet” and the cost of that diet. He is then required to set the allotment levels accordingly. While the Act does not expressly provide for judicial review of the Secretary’s determination, neither does it in express or implied terms preclude review.

Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970), held that judicial review of administrative action “is the rule, and nonreviewability an exception which must be demonstrated.” The Court quoted Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967): “[J]udicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.”

There is no persuasive reason to believe that Congress intended to preclude judicial review of administrative action taken under the Food Stamp Act, either in terms of the statute or in the legislative history cited by appellee. Accordingly, we conclude that judicial review is proper.

As to the scope of review, “[I]t is well settled that the fact-finding function is within the exclusive province of the administrative agency. * * * ‘[T]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.’” (Footnote omitted). Deutsch v. United States Atomic Energy Commission, 130 U.S.App.D.C. 339, 401 F.2d 404, 407 (1968), quoting Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 765, 83 L.Ed. 1147 (1939).

Thus, judicial review is limited to the question of whether the Secretary of Agriculture had a rational basis for his determination that basing food stamp coupon allotments on the cost of the Economy Food Plan satisfies his statutory duty to provide “eligible households” with “an opportunity to obtain a nutritionally adequate diet.”

Summary Judgment

Summary judgment of course is proper only where there is no genuine issue as to any material fact. Rule 56(c) F.R.Civ.P. The movant has the burden of clearly demonstrating the absence of any genuine issues as to all the material facts applicable under his theory of the law, and a party opposing summary judgment is entitled to the benefit of all favorable inferences that may be drawn from the evidence. The court may not weigh or resolve issues of fact. In Harl v. Acacia Mutual Life Insurance Company, 115 U.S.App.D.C. 166, 317 F.2d 577, 580 (1963), this court quoted with approval the holding of the Eighth Circuit:

“That one reasonably may surmise that the plaintiff is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them.”

Appellants’ Motion for Summary Judgment

As noted supra, appellants filed in district court a statement listing 29 “material facts as to which there exist genuine issues that need to be litigated”. They now argue “that appellants’ witnesses, USDA witnesses, and USDA publications all agree that the Economy Food Plan is not a reasonable measure” for determining the cost of a nutritionally adequate diet and that summary judgment should be entered in their favor, subject to remand for determining issues relating to regional cost differences.

While isolated portions of the testimony of USDA witnesses and USDA publications lend some support to appellants’ position, there is also abundant evidence to the contrary in the same sources. The affidavit of Assistant Secretary Lyng expressly states:

“The ‘Economy Food Plan’ will provide a nutritionally adequate diet to participating households. Food in that plan will provide more than the daily dietary allowances recommended by the Food and Nutrition Board of the National Academy of Sciences-National Research Council for all of the nutrients for which recommended allowances have been established and for which adequate information on the content of such nutrients in foods is available. Contrary to plaintiffs’ contentions, families will receive wholesome nourishment even if the diets suggested for use under the Economy Food Plan are followed for periods of indefinite duration.” App. 104a.

The affidavit of H. Rex Thomas, Acting Administrator of the Department’s Agricultural Research Service, likewise states that, “The Economy Food Plan, if followed, is sufficient to provide a nutritionally adequate diet.” App. 94a.

From an examination of the record in its entirety and giving appellees the “benefit of all favorable inferences that may be drawn from the evidence”, it is clear appellants are not entitled to summary judgment.

Appellees’ Motion for Summary Judgment

A more difficult question is presented by appellees’ motion, particularly in view of the limited scope of judicial review.

It is true, as appellees contend, that the legislative history of the 1971 Amendment makes it clear that when Congress committed to the Secretary of Agriculture the determination of “the cost of a nutritionally adequate diet”, Congress was aware that the Secretary planned to use the Economy Food Plan. The Conference Report reads in part:

“2. Value of Coupon Allotment
“The House bill established the value of the coupon allotment to food stamp recipients at a level which the Secretary finds will provide a ‘nutritionally adequate diet.’ The Department informed the’ Committee that this is currently $106 per month for a family of four. The Senate amendment proposed to establish a ‘low cost food plan’ standard which the Department stated would require $134 per month for a family of four.
“The conference substitute retains the House standard, but adopts the language of the Senate amendment requiring the Secretary of Agriculture to make an annual adjustment to reflect increases for food in the ‘Cost of Living’ index published by the Department of Labor. H.R.Rep.No. 1793, 91st Cong., 2d Sess. 9 (1970).”

A letter from Assistant Secretary Lyng to Senator Dole, which was placed in the Congressional Record when the Conference Report was under debate, reads:

“Dear Senator Dole: You have inquired whether the Economy Food Plan would provide families with an adequate diet.
“The Economy Food Plan, which is the least expensive of the food plans published by USD A, does provide families with nutritionally adequate diets. In fact, adequate plans can be developed at still lower cost.
“It is obvious, of course, that the more expensive food plans published by the Department offer families a broader range of choice and allow them.to utilize foods with lower nutritional value per dollar.”

We recognize that Congress did not “adopt” the Economy Food Plan as a statutory standard of nutritional adequacy. Since Congress was clearly aware, however, that the Secretary of Agriculture intended to use this plan, it would be difficult to find, as appellants contend, that the Secretary “applied arbitrary, unreasonable and illegal standards, and abused [his] discretion in determining the level of coupon' Food Stamp allotments which will provide recipients with an opportunity to purchase a nutritionally adequate diet”.

We conclude, however, that this determination should be made initially by the district court. It is clear from the memorandum opinion that the district court granted summary judgment on the ground that the issues were moot by reason of the change in regulations. There was no determination whether, giving the appellants “the benefit of all favorable inferences that may be drawn from the evidence”, there was (1) no abuse of discretion by the Secretary, and (2) a rational basis for the Secretary’s determination with respect to (a) the use of the Economy Food Plan in determining the level of coupon food allotments, and (b) in failing to provide differences in coupon allotments to reflect regional differences in food costs.

Reversed and remanded for further proceedings consistent with this opinion.

      . Pub.L. 88-525, August 31, 1964, 78 Stat. 703.

      . Pub.L. 91-671, January 11, 1971, 84 Stat. 2048.

      . The 1964 Act provided that “eligible households * * * shall be provided with an opportunity more nearly to obtain a nutritionally adequate diet.” The words “more nearly” were deleted in the 1971 Amendment.

      . 7 C.F.R. §§ 270-274 (36 Fed.Reg. 14102-14120, amended April 19, 1972, 37 Fed.Reg. 7724).

      . Appellants in their complaint and briefs refer to the plan as the Economy Diet Plan or E.D.P. In the affidavits of USDA officials and appellees’ briefs, it is usually designated Economy Food Plan.

      . The five plans are “economy, low-cost, low-cost for families who are high consumers of cereal products, moderate-cost and liberal”. Affidavit of H. Rex Thomas, Acting Administrator of Agricultural Research Service, USDA, App. 93a.

      . Affidavit of Richard E. Lyng, Assistant Secretary of Agriculture for Marketing and Consumer Affairs, USDA, App. 104a.

      . Supplemental Affidavit of Richard E. Lyng, App. 117a.

      . With their opposition to plaintiffs’ motion for a preliminary injunction, defendants had filed affidavits of Richard E. Lypg, Assistant Secretary for Marketing and Consumer Services, and H. Rex Thomas, Acting Administrator of the Agricultural Research Service. A supplemental affidavit by Lyng was filed with defendants’ motion to dismiss. In opposition to the motion to dismiss, plaintiffs filed a statement listing 29 material facts genuinely at issue and affidavits of Dr. Joseph Cimino, Commissioner of the Department of Health of the City of New York; Arthur Schiff, Assistant Commissioner for the Office of Policy Research and Evaluation of the New York City Department of Social Services, and Sophia M. Podgorski, Director of the Division of Nutrition, Pennsylvania Department of Health.
      Following the depositions of Assistant Secretary Lyng, Dr. Robert L. Rizek, Director of Consumer and Pood Economics Research Division, Agricultural Research, and James H. Kocher, Director of the Pood Stamp Division, Pood and Nutrition Service, Marketing and Consumer Services Section, USDA, the court, without hearing or oral argument, entered its order of July 6, 1972. Plaintiffs’ motion for reconsideration was denied August 14, 1972.

      . In an action challenging regulations promulgated by the Secretary with respect to the purchase price of food stamp coupons, this court in Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561 (1970), followed the general rule that, subject to rare exceptions, the action of an administrative agency in the domestic sphere is reviewable, “for arbitrariness and abuse of discretion, even though discretion may be broad.” Supplemental Opinion (Leventhal, C. J.) following rehearing, 427 F.2d at 567. The court did not, however, determine the nature and scope of review, but concluded that the district court should determine whether the “Secretary exercised his discretion in a manner consistent with the statute and the Constitution.” 427 F.2d at 566.

      . Underwater Storage, Inc. v. United States Rubber Co., 125 U.S.App.D.C. 297, 371 F.2d 950, 953 (1966), cert. denied, 386 U.S. 911, 87 S.Ct. 859, 17 L.Ed.2d 784 (1967).

      . Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704 (1964), on remand, 263 F.Supp. 516.

      . Empire Electronics Co. v. United States, 311 F.2d 175, 179 (2 Cir. 1962); 3 Barron and Holtzoff, Federal Practice and Procedure § 1225 (Wright Ed. 1958), 6 Moore’s Federal Practice, para. 56.15 (3) (1965).

      . Sprague v. Vogt, 150 F.2d 795, 801 (8 Cir. 1945).

      . Appellants rely upon isolated excerpts from the testimony of Dr. Robert L. Rizek, Director of Consumer and Food Economic Research for the Department. While Dr. Rizek did not think there was an answer to counsel’s question, “What is a reasonable measure of basic money needs for a good diet”, he did testify that it was his understanding that a person may follow the economy food plan and have a nutritionally adequate diet as long as he lives (App. 196a), and that “The economy food plan provides a nutritionally adequate diet based on the RDA.” (Recommended Dietary Allowance of the National Academy of Sciences). App. 198a.

      . No useful purpose would be served by a detailed discussion of the evidence. There was a dispute with respect to all of the grounds now urged by appellants to support their claim to summary judgment.

      . The Senate had adopted an amendment offered by Senator McGovern providing that the amount determined by the Secretary should in no event be less than the “low-cost food plan.” In supporting this amendment and later in opposing the Conference Report, Senator McGovern advanced many of the arguments here urged by appellants with respect to the Economy Food Plan.

      . As this court recognized in National Life Insurance Company v. Silverman, 147 U.S.App.D.C. 56, 454 F.2d 899, 908 (1971), “the court is required to determine whether there are material facts as to which there is no genuine issue.” In that case the court could not “be sure that the evidentiary material in support of the motion was considered”, but determined that it was clear from the record that there were material facts as to which there was no genuine issue. It seems clear that in this case the court’s finding that there are “now no material facts in dispute” related solely to the issue of mootness. The evidentiary material submitted by all parties on the motions for summary judgment should be considered by the district court in determining whether there are any genuine issues as to material facts. See Generally, 6 Moore Chap. 56.
      We do not intend by this opinion to suggest to the district court that a summary judgment should or should not be entered for the appellees. That is a matter for the court to determine after hearing and a full examination of the evidence on both issues before the court. On the basis of the evidence now before this court it would appear that at least with respect to regional variations in food prices there may be genuine issues as to material facts.


text:
    UNITED STATES of America v. Abell HOLIDAY, a/k/a Hampton Holiday, Appellant.
    No. 24582.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 15, 1971.
    Decided July 12, 1973.

      Clarence A. Jacobson, with whom Albert J. Feigen, Washington, D. C. (both appointed by this court) was on the brief, for appellant.
    C. Madison Brewer, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
    Before ROBINSON and WILKEY, Circuit Judges, and CHRISTENSEN, United States District Judge for the District of Utah.

       Sitting by designation pursuant to 28 U.S. C. § 292(c) (1970).

   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal follows a jury trial and convictions of Abell Holiday, the appellant, on two counts of armed robbery, one count of kidnapping, three counts of assault with a dangerous weapon and one count of carrying a dangerous weapon, all stemming from the robbery of a grocery store in the District of Columbia. The main contentions here are that two Government witnesses made in-trial identifications of Holiday after viewing him at an uncounseled lineup, and that the Government elicited testimony of an identification previously made at the lineup by one of the witnesses, all in violation of the Sixth Amendment’s guaranty of right to counsel. After scrutinizing the record, we are persuaded that the claim of error does not warrant reversal. We do find it necessary, however, to vacate two of the convictions for assault.

I

Two men, subsequently identified as Holiday and one Nathaniel Clifton, staged a mid-afternoon holdup of Green’s Market, a grocery store at 156 L Street, Southeast. To facilitate a recital of the events culminating in Holiday’s arrest and trial, we refer to the holdup men as' so identified. Holiday drew a gun and covered the proprietor, Reginald M. Green, his employee, Joan D. Beckwith, and a friend, Bobby Stoddard. Clifton ordered Green to place the money from the cash register on the counter, and demanded that Green and Stoddard empty their pockets. When William Hager, a customer, entered the store, he was threatened by Holiday, who robbed him of his wristwatch. After making use of the store’s restroom while Holiday stood guard, Clifton removed a gun and several packs of cigarettes from behind the counter. On instructions from Clifton, Green placed the cash and cigarettes in a bag, whereupon the robbers fled, admonishing their victims not to call the police. In all, the robbery consumed between 15 and 25 minutes.

After departing the store on foot, Holiday and Clifton approached a car stopped at K Street and New Jersey Avenue, Southeast. Clifton asked the driver, William T. Johnson, who was returning home from work, to take them to Fourteenth and R Streets, Northwest. Johnson declined, and Holiday produced his pistol and ordered him to comply. Clifton got into the front seat on the passenger side, and Holiday sat behind him on the right side of the rear seat. Also in the car were Loretta Hedgeman, Annette L. Mackabee and Robert P. Stanback — all co-workers of Johnson, the driver.

Johnson proceeded across the city, finally arriving at Fourteenth and R Streets, Northwest, where the robbers ordered him to stop. While Holiday remained in the car, Clifton alighted and procured a bottle of scotch from a nearby liquor store; at Holiday’s request, he returned to the store for some beer. When Clifton got back into the car, Johnson drove a short distance and was stopped by police responding to a radio-run description of the vehicle and the robbers. The occupants were taken into custody, and a search of the car yielded four one-dollar bills and the bag containing the cigarettes. A subsequent search of Holiday and Clifton turned up two handguns and approximately eighteen dollars in bills and change; a wristwatch was also recovered from Holiday’s person. The crosstown trip from the point where the robbers first took charge of the car lasted between 20 and 45 minutes.

Pursuant to an order of the District of Columbia Court of General Sessions, Holiday participated in a lineup four days later. There he was viewed by Green, the proprietor of the grocery store, and Ms. Beckwith, his employee. The lineup order reflects that it was served on Holiday’s counsel, but he did not attend the lineup, and there is no indication that Holiday was represented by substitute counsel.

A grand jury later returned a sixteen-count indictment against Holiday and Clifton. The latter entered a plea of guilty to multiple counts of robbery, and testified for the Government at Holiday’s trial. The other Government witnesses included Green, Ms. Beckwith and the four occupants of the commandeered auto, all six of whom positively identified Holiday as Clifton’s accomplice. The jury found Holiday guilty on seven of the counts charged. The trial judge imposed concurrent sentences of ten to thirty years for the armed robberies, ten to thirty years for the kidnapping, three to ten years for the assaults, and one year for carrying the gun. This appeal followed.

II

The source of Holiday’s contention that reversible error was committed at his trial is the alleged invalidity of the lineup. In United States v. Wade, the Supreme Court held that a pretrial lineup is a critical stage of the prosecution at which the Sixth Amendment guarantees the accused the assistance of counsel. At Holiday’s preliminary hearing, in response to a question by the presiding judge, it was ascertained that neither his counsel nor counsel for his accomplice had attended the lineup. While effective assistance by substitute counsel would have sufficed to comply with the Wade mandate, and although the police department apparently records the names of attorneys representing individuals placed in lineups, there is no evidence that Holiday in fact had substitute counsel at his lineup. With the situation in this uncertain state, we could not appropriately rest upon the speculation that Holiday was probably represented by substitute counsel. Given the gravity of the constitutional safeguard involved here, we must afford Holiday the benefit of the doubt on this point and base our analysis on the assumption that he was not aided by counsel at his lineup.

Where a lineup of an accused unassisted by counsel has been conducted, two considerations arise with respect to the subsequent introduction of identification testimony at trial. The first is that an in-court identification during the trial by a witness who viewed the accused at the flawed lineup must be shown, by clear and convincing evidence, to have a source independent of the lineup — stemming from a high-caliber opportunity to view the accused at the time of the crime. At Holiday’s trial, the two witnesses who had previously picked him at the lineup as one of the robbers were permitted to identify him as such from the witness stand. Where an unsuccessful challenge is made to a lineup, the preferred procedure is for the trial court to make a finding, at the time it rules on the challenge, as to whether an independent source exists to support an in-court identification by the lineup witness at trial, whether or not that is the basis for the ruling. That procedure was not followed here because no motion to suppress in-trial identifications was made by Holiday’s trial counsel before or during the trial.

The second consideration springing from an uncounselled lineup is that evidence of an identification of the accused made at the invalid lineup may not be introduced by the Government in the first instance. The accused may, if he chooses, show the events transpiring at a faulty lineup, and if he does the Government, of course, is entitled to respond. But unless the accused initiates the subject, evidence of the identification is per se inadmissible, and unless constitutionally harmless is reversible error. In the case at bar, the Government did refer to one of the lineup identifications after cross-examination of one of its witnesses had inadvertently brought to light the fact that there had been a lineup.

Thus we are confronted with two problems. One is whether the record demonstrates sufficiently that each of the two in-court identifications by witnesses who had attended the apparently uncounselled lineup was based upon an independent source. The other is the propriety of the Government’s references to the lineup identifications and, if improper, whether reversal is warranted. To these matters, in that order, we now proceed.

Ill

Upon a careful analysis of the record, we find that it establishes, clearly and convincingly, an independent source for the identifications of Holiday at trial by Reginald Green and Joan Beckwith, the two witnesses who viewed him at the lineup. In Wade, the Court isolated several factors to be evaluated in determining whether a particular identification stems from events other than an illegal pretrial confrontation. Among these are the witness’ prior opportunity to observe the criminal act and the party committing it; the existence of any discrepancy between any description of the perpetrator given by the witness and the accused’s appearance; any identification by the witness of someone other than the accused; any identification of a photograph of the aecused; any failure by the witness to identify the accused prior to the in-court identification; and the lapse of time between the criminal act and the identification. Our own decisions have isolated a similar set of relevant criteria.

Scrutinizing first the opportunity of witnesses Green and Beckwith to view the gunman at the time of the offenses, we note that the robbery took place during the daylight hours in a store lit by two banks of fluorescent tubes. The man with the pistol stood facing Green and Ms. Beckwith across the counter during the entire episode, which lasted some 15 to 25 minutes. After the crimes, Green gave descriptions of both robbers to the police, including details of their builds, facial appearances and clothing, and at trial both witnesses recounted some details of their descriptions. Moreover, Holiday is a distant cousin of Ms. Beckwith, who had known him for five years and had recognized him immediately when he entered the store.

Both witnesses were cross-examined at trial as to their opportunities to observe the robbers but their identifications were not shaken. No discrepancy was shown in any descriptions they gave; nor does the record reflect any misidentification on their part or failure m recognize Holiday on any occasion as the man who pointed the gun at them. Green did not recall that he had ever been shown a photograph of Holiday, and Ms. Beckwith was not asked whether she had viewed any photographic display. The lapse of time between the holdup and the trial was approximately 14 months.

On balance, giving careful consideration to the circumstances in light of the criteria suggested in Wade we conclude that the record demonstrates clearly and convincingly that the identification of Holiday at trial by the two lineup witnesses was amply sustained by their observation of him during the robbery independently of whatever recollection they might have had from the tainted lineup. Thus, the in-court identifications were proper.

IV

The trial transcript reveals that four times the lineup was mentioned at Holiday’s trial. The first reference to it was a gratuitous comment by the store proprietor, Reginald Green, while being cross-examined by defense counsel concerning his viewing of certain photographs. Following the witness’ statement that he had attended a lineup, and his response to a subsequent inquiry by defense counsel indicating that the robbery and lineup had occurred over a year before, the prosecutor asked him on redirect examination whether he had recognized anyone at the lineup, and the witness answered that he had identified Holiday and his accomplice. Somewhat later, when Holiday himself was on the stand, the prosecutor again brought up the lineup in cross-examination seeking to impeach Holiday’s claim that he had never seen Ms. Beckwith before. The final mention of the lineup was a reference to it by the Government in its rebuttal argument.

To justify the questions propounded to Green on redirect concerning the lineup, the Government advances the theory that once the witness referred to the lineup in responding to defense cross-examination, in effect the door was open under Clemons v. United States for the Government to clarify the matter of the lineup in its redirect examination. Clemons is inapposite here, since it speaks to the situation where defense counsel purposely elicits testimony concerning an invalid lineup, as opposed to the case such as this where the Government’s witness brings up the topic himself. Moreover, the prosecutor undertook on redirect examination to “clarify” the witness’ volunteered remark— which was simply that he had attended a lineup — by showing that the witness had identified Holiday as one of the culprits; he again alluded to the lineup in cross-examination of Holiday; and he made effective use of Green’s lineup identification in argument to the jury. That course of conduct was clearly a violation of Gilbert v. California, and no support can be found for it in Clemons.

Forced as we are to assume that Holiday’s lineup contravened the Sixth Amendment, and now accepting the necessary corollary that the prosecutor’s development of one of the identifications thereat and mention of it in closing argument breached the mandate of Gilbert, we must determine whether the admission of this impermissible material was prejudicial or merely harmless error. The test to be applied was set forth by the Supreme Court in Chapman v. California, which holds that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” In applying this test we must, as the Court noted in Harrington v. California, base our judgment “on our own reading of the record and on what seems to us to have been the probable impact of the [tainted evidence] on the minds of an average jury.” Keeping these principles in mind, we review the Government’s ease against Holiday.

The first two Government witnesses, Reginald Green and Joan Beckwith, positively identified Holiday as the man who held a gun on them during a robbery of 15 to 25 minutes duration. Not only did these two witnesses have an excellent opportunity to observe the gunman, but Ms. Beckwith was a distant relative of Holiday and had known him for about five years. The next four witnesses called by the prosecutor were the driver and passengers from the automobile commandeered by the robbers for their crosstown flight. These four also positively identified Holiday as the man who stuck a pistol through the rear window and occupied the right rear seat in close proximity to them during the drive to Fourteenth and R Streets, which consumed at least 20 minutes. The next Government witness, Metropolitan Police Officer Donald Borden, related in detail how he observed the suspected getaway vehicle on Fourteenth Street and watched as Clifton, who fit the radio-run description of one of the robbers, emerged and made two trips to the liquor store. Officer Borden further revealed that searches of the car and of Holiday and his accomplice turned up the proceeds of the crime. Culminating the Government’s presentation was the testimony of Holiday’s accomplice, Nathaniel Clifton, who recounted in detail how the two had met, planned the offense and carried it out.

Against this inundation of incriminating testimony, Holiday offered the jury only his version of what happened. According to it, he was the victim of a mistake, which came about when he met Clifton emerging from the liquor store at Fourteenth and R Streets and accepted the latter’s invitation to join him and the four persons in the car on the representation that they were on their way to a party. Holiday claimed he sat in the front seat of the car, denied having a gun on his person when arrested, and accused the police of framing him.

To say the least, the evidentiary balance reflected by the record before us is heavily weighted on the side of the Government. This is certainly not a case where the few comments at trial about the invalid lineup, to which we have adverted, can be said to have tipped an evenly poised set of scales in the prosecution’s favor. Nor is it a case where it could be said that the comments, in relation to the case as a whole, were likely to exert any significant influence on the outcome. On the contrary, in the face of the overwhelming evidence of guilt, we perceive no sensible alternative to a conclusion beyond a reasonable doubt that the error complained of did not contribute to the verdict rendered against Holiday.

To summarize, even assuming that Holiday was not afforded the assistance of counsel at his lineup, we conclude that an independent source supported his identification at trial by the two lineup witnesses, and that the references to that confrontation at trial constituted harmless error. The convictions on all but two counts of assault, are accordingly

Affirmed.

      . D.C.Code §§ 22-2901, 22-3202 (1967).

      . D.C.Code § 22-2101 (1967).

      . D.C.Code § 22-502 (1967).

      . D.C.Code § 22-3204 (1967).

      . Holiday also contends that he was denied the effective assistance of counsel at his trial, and that he was deprived of a fair trial by the overzealousness of the prosecutor and bias on the part of the trial judge. AVe have examined the record carefully and conclude that the first of these claims cannot prevail. See United States v. Hammonds, 138 U.S.App.D.C. 166, 170, 425 F.2d 597, 601 (1970); Harried v. United States, 128 U.S.App.D.C. 330, 333-336, 389 F.2d 281, 284-287 (1967); Bruce v. United States, 126 U.S.App.D.C. 336, 339-341, 379 F.2d 113, 116-118 (1967); Mitchell v. United States, 104 U.S.App.D.C. 57, 63, 259 F.2d 787, 793, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958). We further conclude that, save to the extent pointed out in this opinion, the prosecutor did not exceed the bounds of propriety. See Taylor v. United States, 134 U.S.App.D.C. 188, 189, 413 F.2d 1095, 1096 (1969). And we find the charge of judicial bias completely devoid of merit.

      . Holiday was convicted of armed robberies of Reginald Green and William Hager and also of assaults with a dangerous weapon upon Green and Hager. We have recently held in United States v. Johnson, 155 U.S.App.D.C. 28, 29, 475 F.2d 1297, 1298 (1973), that where an armed robbery and an assault with a dangerous weapon are committed against the same person, the latter merges into the former. Id. at 29 and n. 2, 475 F.2d at 1298 and n. 2. Thus, Holiday’s convictions on these two assault charges (counts 3 and 6 of the indictment) must be vacated. There is no need for a remand for resentencing, however, since Holiday was given separate sentences for each offense of which he was found guilty, and all sentences were set to run concurrently. See United States v. Benn, 155 U.S.App.D.C. 180, at 185 & n. 24, 476 F.2d 1127, at 1132 & n. 24 (1972). Accord, United States v. Wimbush, 154 U.S.App.D.C. 236, 237-238, 475 F.2d 347, 348-349 (1973). See text infra at note 9.

      . Now the Superior Court of the District of Columbia. D.C.Code § 11-901 (Supp. V 1972).

      . As is later mentioned, Green identified Holiday at the lineup and at trial. The record does not disclose whether Ms. Beckwith identified him at the lineup, although she did at trial.

      . See text supra at notes 1-4, and note 6, supra.

      . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . Id. at 237, 87 S.Ct. 1926.

      . Holiday’s counsel indicated at the preliminary hearing that he had not attended the lineup, but he knew from Green’s testimony at the preliminary hearing that his client had been identified at the lineup.

      . The question of substitute counsel was left open in Wade, 388 U.S. at 237, 87 S.Ct. 1926, but we have given our approval to the use of substitute counsel at lineups. B. g., United States v. Neverson, 150 U.S.App.D.C. 133, 140, 463 F.2d 1224, 1231-1232 (1972); United States v. Kirby, 138 U.S.App.D.C. 340, 343-344, 427 F.2d 610, 613-614 (1970). The practice is not without its potential hazards, however, particularly where substitute counsel fails to communicate with the accused’s regular lawyer prior to trial. Compare United States v. Johnson, 147 U.S.App.D.C. 31, 34-35, 452 F.2d 1363, 1366-1367 (1971) and Marshall v. United States, 141 U.S.App.D.C. 3, 4, 6 n.18, 436 F.2d 155, 158, 160 n.18 (1970) with United States v. Smallwood, 153 U.S.App.D.C. 387, 389-390, 473 F.2d 98, 100-101 (1972). See United States v. Randolph, 143 U.S.App.D.C. 314, 316-318, 443 F.2d 729, 731-733 (1970); United States v. Garner, 142 U.S.App.D.C. 15, 16-17, 439 F.2d 525, 526-527 (1970), cert. denied, 402 U.S. 930, 91 S.Ct. 1531, 28 L.Ed.2d 864 (1971). Compare United States v. Jones, 155 U.S.App.D.C. 328, 336-338, 477 F.2d 1213, 1221-1223 (1973).

      . There is no contention that the lineup was unduly suggestive or otherwise faulty. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . This approach to a situation where the evidence is unclear on representation by counsel at the lineup was employed by this court in United States v. Randolph and United States v. Garner, both supra note 13. In Randolph, the court proceeded, as we do here, on the assumption that the appellant was not assisted by counsel at his lineup, but it concluded on the basis of the record that references to the lineup at his trial were harmless error. 143 U.S.App.D.C. at 318-319, 443 F.2d at 733-734. In Garner, the court also assumed that the appellant had been denied his Wade right, but since there was no direct testimony at trial concerning the lineup, the court’s only task was to determine whether an independent source existed to support in-court identifications by the lineup witnesses. 142 U.S.App.D. C. at 17-18, 439 F.2d at 527-528. Here we combine the Randolph and Garner approaches since we must deal both with in-court identifications by the lineup witnesses and statements at trial concerning the lineup.

      . United States v. Wade, supra note 10, 388 U.S. at 240-241, 87 S.Ct. 1926.

      . This procedure is outlined in detail in Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (en banc 1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

      . See Fed.R.Crim.P. 52(b). And see text supra note 15.

      . Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Clemons v. United States, supra note 17, 133 U.S.App.D.C. at 34, 408 F.2d at 1237.

      . We have held, where a pretrial confrontation has been deemed unduly suggestive, that the defense may decide as a matter of tactics to bring it to the jury’s attention in order to reduce the weight the jury might give to the witness’ in-court identification. Clemons v. United States, supra note 17, 133 U.S.App.D.C. at 34, 408 F.2d at 1237. Assuming a defense strategy to be served, there is no reason why the same thing may not bo done where the accused was unassisted by counsel at the lineup.

      . Id. at 43, 408 F.2d at 1246.

      . Gilbert v. California, supra note 19, 388 U.S. at 273-274, 87 S.Ct. 1951.

      . United States v. Wade, supra note 10.

      . 388 U.S. at 241, 87 S.Ct. 1926.

      . Id.

      . United States v. Kemper, 140 U.S.App. D.C. 47, 50-52, 433 F.2d 1153, 1156-1158 (1970), and cases there cited.

      . Compare United States v. Sanders, 156 U.S.App.D.C. 210 at 212, 479 F.2d 1193 at 1195 (1973); United States v. Kemper, supra note 26, 140 U.S.App.D.C. at 51 & n.27, 433 F.2d at 1157 & n.27.

      . Compare United States v. Sanders, supra note 27, 479 F.2d at 1196 & n.2 (between five and ten minutes); United States v. Kemper, supra note 26, 140 U.S.App.D.C. at 51 & n.28, 433 F.2d at 1157 & n.28.

      . Compare United States v. Sanders, supra note 27, 479 F.2d at 1195-1196; United States v. Kemper, supra note 26, 140 U.S.App.D.C. at 51 & nn.29, 30, 433 F.2d at 1157 & nn. 29, 30.

      . United States v. Wade, supra note 10, 388 U.S. at 241, 87 S.Ct. 1926.

      . Where the Government seeks to elicit in-court identifications following a constitutionally impermissible confrontation it must demonstrate by “clear and convincing evidence” the existence of an independent source. Id. at 240, 87 S.Ct. 1926.

      . During cross-examination, Holiday’s counsel inquired of the witness :
      Q. Were you ever shown any photograph of either Mr. Clifton or Mr. Holiday? A. Photograph? I wont to a lineup.
      Q. But were you ever shown a photograph of either of them before the line-up?
      A. I don’t remember.
      Q. Have you even seen a photograph of either of them? A. I can’t say that I have.

      . Continuing his questioning about photographs Holiday’s counsel asked:
      Q. I will show you what is marked as Defendant’s Exhibit Number 2, and ask you if you can identify the photograph?
      The Court: You mean as to whether he has seen it before?
      [Defense Counsel! : Whether he has ever seen it before.
      The Court: Have you ever seen that one before?
      The Witness: I have seen the person but I don’t remember seeing the photograph. Like I say, this has been over a year ago.
      Q. Very well, thank you. You say it has been over a year. What has been over a year? A. The robbery and pretrial and line-up has all been over a year.

      . On redirect examination, the prosecutor queried :
      Q. You were asked about a line-up. Did you go to a line-up? A. Yes.
      Q. Did you recognize anybody at the line-up? A. I identified Mr. Clifton and Mr. Holiday.

      . During his cross-examination of Holiday, the prosecutor asked him the following :
      Q. Well now, after you were arrested, sir, you were placed in a line-up, weren’t you? A. Yes, sir.
      Q. Do you remember Joan Beckwith coming to the line-up and identifying you?
      A. No, sir, I don’t know her coming to the line-up.
      Q. How about Reginald Green, do you remember him coming? A. No, sir.
      Q. But you were in a iine-up? A. Yes, sir.
      Q. Along with Clifton? A. Yes, sir.

      . In his rebuttal argument, the prosecutor made the following statement:
      The only ones charged were Clifton and Holiday. And they are the very ones who were identified at line-ups

      . Supra note 17.

      . 133 U.S.App.D.C. at 34, 43, 408 F.2d at 1237, 1246.

      . See note 32, supra.

      . See note 34, supra.

      . See note 35, supra.

      . See note 36, supra.

      . Supra note 19, 388 U.S. at 273, 87 S.Ct. 1951.

      . Supra note 17, 133 U.S.App.D.C. at 45, 408 F.2d at 1248.

      . See text supra at note 15.

      . See United States v. Randolph, supra note 13, 143 U.S.App.D.C. at 318, 433 F.2d at 733.

      . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . Id. at 24, 87 S.Ct. at 828.

      . 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

      . Id. at 254, 89 S.Ct. at 1728.

      . See text infra at notes 27-29.

      . Chapman v. California, supra note 47, 386 U.S. at 24, 87 S.Ct. 824. See United States v. Randolph, supra note 13, 143 U.S.App.D.C. at 318-319, 443 F.2d at 733-734; United States v. Green, 141 U.S.App.D.C. 136, 138-139, 436 F.2d 290, 292-293 (1970); Marshall v. United States, supra note 13, 141 U.S.App.D.C. at 5-7, 436 F.2d at 159-161.

      . See note 6, supra.