author: GUNN, District Judge.

text:
    Andrew N. WALLACE, Plaintiff, v. UNIVERSITY OF MISSOURI, ST. LOUIS, Defendant. Ernest COX, Plaintiff, v. The CURATORS OF the UNIVERSITY OF MISSOURI, Defendant.
    Nos. 84-0991C(6), 84-1508C(6).
    United States District Court, E.D. Missouri, E.D.
    Jan. 14, 1986.
    Norman Seiner and Kathleen O’Blennis, St. Louis, Mo., for plaintiffs.
    Philip J. Hoskins, James S. Newberry and Robert L. Ross, Columbia, Mo., for defendants.
   MEMORANDUM OPINION

GUNN, District Judge.

These two Title VII cases arise out of the same decision by the chief of security police at the University of Missouri-St. Louis (UMSL) to promote a white man from patrolman to sergeant. Plaintiffs are black patrolmen and by complaint allege racial discrimination as a result of being bypassed in the promotion process.

This Court has jurisdiction over the parties and subject matter by virtue of alleged violations of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.). Defendant the Curators of the University of Missouri is an employer and plaintiffs are employees within the meaning of 42 U.S.C. § 2000e, et seq.

After trial on the merits, this Court finds from the credible evidence and extant law that plaintiffs’ complaint is lacking in substance, and based on the findings of fact and conclusions of law which follow, judgment must be for defendant. There is no credible evidence to support a determination that plaintiffs’ failure to receive a promotion or that the promotion of another person to the position of sergeant was the result of any racial discrimination.

FINDINGS OF FACT

Plaintiffs Ernest Cox and Andrew Wallace are black males, each employed as patrolmen for the campus security police for the UMSL campus. Cox has been so employed since August 1976; Wallace has been a patrolman since March 1981.

Plaintiffs’ complaint of race discrimination arises over the October 1983 promotion from patrolman to sergeant of Kenneth Hubbard, a white male. Prior to his promotion Sergeant Hubbard held the position of patrolman with the UMSL campus police from July 1980 to March 1981 and from December 1981 to October 1983. The brief lacuna in employment with defendant was of Hubbard’s choosing.

Each of these employees possesses somewhat similar backgrounds regarding employment, in that each has experience in working as a police officer with the St. Louis police department.

During Sergeant Hubbard’s final ten years as a patrolman with the St. Louis police department, he served as an acting sergeant about 25% of the time with supervisory authority over other officers.

The total number of police within the UMSL police department is 17. The racial makeup is as follows:

1 chief —white

4 sergeants —2 black; 2 white

1 detective —white

11 police officers —7 black; 4 white

Total 17 —9 black; 8 white

William Karabas has been the Chief of Police at UMSL since March 1982. Prior to October 1983, when the sergeant’s position at issue in this case became open, Chief Karabas had had only one other opportunity to promote an officer. On that occasion, Chief Karabas appointed James Smalley, a black male police officer, to the position of sergeant.

In October 1983 Sergeant King, a white male, resigned from the campus police department, creating an opening for that position. The remaining sergeants were James Smalley and John Sharp, both black males, and Sergeant Donald Jablonski, a white male. A total of 3 white males, including Kenneth Hubbard, and 4 black males, including plaintiffs Cox and Wallace, applied for the vacancy.

The applicants were interviewed by a panel consisting of Police Chief Karabas and the director and assistant director of personnel at UMSL. Chief Karabas carried most of the interviewing process, as the ultimate decision for making the appointment would be his. Each applicant was asked the same basic questions which were designed to elicit how the applicant would handle discipline of subordinate officers; why he had sought the promotion; why he believed himself to be qualified; what supervisory experience he had acquired during his career; and what improvements he would make in the department.

Though Wallace, Cox and Hubbard had the same fundamental backgrounds in police work, Hubbard possessed substantially more experience as a supervisor of subordinate officers. He also held much better qualification as a supervisor beyond the bare minimum requirements. His responses to questions were also superior in quality to those given by Cox and Wallace.

The police sergeant is the highest ranking officer in the police department with the exception of the Police Chief, and there are no levels of authority between the sergeants and the Chief. In that capacity, the police sergeant on each shift is responsible for supervising the police officers, radio dispatchers and any emergency truck driver assigned to the shift. Thus, supervisory skills are essential to the satisfactory performance of the duties of police sergeant. As a part of those supervisory duties, the police sergeant assigns and reviews the work of the subordinates on the shift and assists the Police Chief, as requested, in making recommendations on hiring decisions. The sergeant is also responsible for disciplining those officers assigned to him, and carrying out directions from the Chief as to the department’s operation. In addition to the supervisory responsibility, the UMSL police sergeant is also responsible for performing duties of a police officer.

There also must exist a close personal relationship between the sergeants and the Chief, as they are the only designated supervisors in the department. Mere time of service with the department was not a necessary criterion for promotion.

Both plaintiffs Cox and Wallace exhibited open hostility to Chief Karabas with whom they acknowledged they would have to have a close relationship. At trial, Cox referred to his chief as “dictator” and acknowledged that he had been critical of the Chief and his policies to other police in the department.

Plaintiff Wallace, though acknowledging that Chief Karabas was not racially biased against anyone, expressed a personal hostile attitude for his chief.

It is also apparent from the credible evidence that Plaintiff Wallace does not relate well with his fellow officers.

Major factors which went into the final decision to select Kenneth Hubbard over plaintiffs Cox and Wallace were his superi- or supervisory experience and his ability to get along with other officers.

It is the trial court’s further finding of fact that Plaintiff Wallace does not relate well with fellow employees and that both plaintiffs’ obvious hostility and criticism of their superior militates against their being satisfactorily suited to serve as sergeants.

Chief Karabas also relied on the recommendations of Sergeants Jablonski (white) and Smalley (black) that Kenneth Hubbard was much better qualified to be sergeant than either of plaintiffs.

Sergeant Smalley’s credible testimony was that Plaintiff Cox had talked of retirement and that Plaintiff Wallace did not relate well and was quarrelsome with other officers.

The credible evidence supports the finding that neither Wallace nor Cox was as qualified as Sergeant Hubbard for the promotion.

There was absolutely no evidence to support a finding of racial discrimination within the campus police department by defendant or any of its employees. Race was no factor in the promotion decision in this case.

CONCLUSIONS OF LAW

There is nothing particularly remarkable about this Title VII case. The pertinent law is clear and has been declared many times.

The leading case articulating the basic allocation of burdens and order of presentation of proof in a Title VII case is Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), which provides the following appropriate rubric:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for [his action]____” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination____ The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

Id. at 252-53, 101 S.Ct. at 1093.

Though plaintiffs contend that race underlies their failure to be promoted, the facts of the case belie such contention, and they fail to meet the ultimate burden demanded by Burdine of establishing that there was intentional discrimination against them.

The defendant in this instance has articulated a legitimate, nondiscriminatory reason for rejecting plaintiffs’ promotion. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (employers need to express legitimate basis for rejection of employee). The reason stated for Hubbard’s promotion — and, hence, plaintiffs’ nonpromotion — is legitimate. Hubbard was much better qualified. He related well with other employees; he had substantially more supervisory experience.

On the other hand, plaintiffs brought about their own downfall by overtly displaying hostility, disrespect and criticism of Chief Karabas with whom they would be required to work in close relationship. Plaintiff Cox displayed lack of zeal for the appointment. Plaintiff Wallace was unable to get along with fellow employees.

The record is totally destitute of any evidence that race was a factor in the selection process. To the contrary, all the evidence was that Captain Karabas treated all employees the same without regard to race and that hirings and promotions were made without regard to race.

The following from Bibbs v. Block, 778 F.2d 1318, 1320 (8th Cir.1985) (banc) is entirely appropriate to the facts of this case in which there is no basis in fact for finding any racial discrimination involved in the promotion issue:

In many Title VII cases, the proof proceeds on both sides on the premise that one motive only on the part of the employer — either an illegitimate one (e.g., race) or a legitimate one (e.g., ability to do the job) — has caused the adverse action of which the plaintiff complains. It is this type of case for which the familiar evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973), is designed. After the plaintiff establishes a prima facie case, and the defendant “articulates” (a verb that refers only to the burden of producing evidence) a legitimate, nondiscriminatory reason for the action complained of, the burden then shifts back to the plaintiff to persuade the trier of fact that the defendant’s proffered reason was not the real one, but only a pretext hiding an impermissible racial motivation. Typically, the plaintiff will contend that one reason— race — was operative, the defendant will contend that another single reason — ability to do the job — motivated it, and the trier of fact will find one reason or the other (but not a combination) to be the true one____
If the District Court in the case before us had found that defendant’s reason or reasons for not promoting plaintiff were other than race, and that race played no part in the decision-making process, we should be required simply to affirm the dismissal of the complaint — assuming the finding was not clearly erroneous. (Emphasis added.)

So it is in this case — as distinguished from Bibbs — that the “reasons for not promoting plaintiff[s] were other than race, and that race played no part in the decision-making process.” The basis for Hubbard’s promotion was on a purely objective, legitimate basis — his superior qualification and ability to do the job, vis-a-vis the plaintiffs, albeit they possessed minimum qualifications. See Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir.1981) (An employer’s decision to promote justified by superior qualifications.)

The necessity for a close working relationship must be emphasized. There are no interceding officers between Chief Karabas and the four sergeants, and plaintiffs do not challenge that they would be working closely with the Chief and be required to implement his orders. Plaintiffs’ personal animosity and distrust of their superior is clearly inimical to an efficient operation and management structure of the police department. Obviously, plaintiffs’ attitude toward their chief could translate into ineffectiveness and disloyalty where an intimate relationship between supervisory officers and chief is critical. The situation here is therefore much the same as discussed in Germann v. City of Kansas City, 776 F.2d 761, 765 (8th Cir.1985), and the cases cited therein, observing that “personal loyalty to the chief was critical to the management structure of the ... department.”

Plaintiffs in this case by their testimony have given sufficient eause for them legitimately to be passed over in favor of Hubbard.

Plaintiffs have therefore failed to bear their ultimate burden of proving discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Hohe v. Midland Corp., 613 F.Supp. 210, 213 (E.D.Mo.1985). There was no evidence of discrimination here. The reason for Hubbard’s promotion was not pretextual and served as a legitimate basis for defendant’s action.

Plaintiffs suggest that UMSL’s statistics for its overall hiring policies for professors within the school bolster their claim of race discrimination policies. These statistics are of little or no worth in this particular situation, where, clearly, no discrimination is shown to exist in the particular department of plaintiffs’ employment. Anderson v. University of Northern Iowa, 779 F.2d 441, 443 (8th Cir.1985).

Judgment for defendant.

      . Cox begged off taking training programs offered to and required of other officers.


source: Caselaw Access Project

author: WARRINER, District Judge.

license: Public Domain

text:
    William J. RHOADES v. Raymond K. PROCUNIER.
    Civ. A. No. 82-0643-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Jan. 14, 1986.
    Stephen W. Bricker, Bremner, Baber & Janus, Richmond, Va., for plaintiff.
    Neil A.G. McPhie, Dennis L. Montgomery, Asst. Attys. Gen., Richmond, Va., for defendant.
   OPINION AND ORDER

WARRINER, District Judge.

Presently under consideration by the Court is the question of whether this Court has jurisdiction over a dispute between plaintiff and his trial counsel regarding some matters in connection with attorney’s fees and costs.

On 8 November 1985, plaintiff filed a motion requesting the Court to order a lawyer who had represented plaintiff in this civil rights action to reimburse plaintiff the sum of $6,602.50, an amount he asserted was due him under a retainer contract into which he entered with his lawyer respecting services in this case. On 19 November 1985, plaintiff’s lawyer filed a motion to dismiss, to which plaintiff responded on 27 November 1985. On 17 November 1985, I ordered the parties to file additional briefs citing authority regarding the Court’s jurisdiction over this matter. Those briefs were timely submitted by both parties.

The facts are not substantially in dispute. Plaintiff’s lawyer represented plaintiff in a tort claim against defendant Procunier. At the commencement of the lawyer-client relationship, counsel required plaintiff to pay a retainer of $5,000.00 and to advance costs as they were incurred. Costs so advanced by plaintiff amounted to $1,602.50. Judgment was granted plaintiff in the trial court and defendant appealed. Pending appeal the parties reached a settlement in the amount of $110,000, plus counsel fees of $16,500 and costs of $1,977.50. Plaintiff’s lawyer sought to disburse the funds recovered so as to pay the fee earned by his firm and to cover unreimbursed costs advanced. The balance of $91,522.50, less taxes and FICA, was paid to plaintiff by his lawyer. The instant dispute contests the particulars of that disbursement. Mr. Rhoades contends that his lawyer improperly retained from the recovery the sum of $6,602.50, which should have been paid out to plaintiff.

In 1980, Judge Merhige decided a case having some similarity with the instant case. In Adams v. Allied Chemical Corp., 503 F.Supp. 253 (E.D.Va.1980), aff'd sub nom., Taylor v. Kelsey, 666 F.2d 53 (4th Cir.1981), one Adams had brought an action against Allied Chemical Corporation and others, seeking compensation for damages allegedly sustained from defendants’ pollution of the James River. In August 1979, Adams’ lawyer, Kelsey, entered into an agreement with Edward Taylor, a Richmond lawyer, providing for Taylor’s assistance to Kelsey in preparing for and conducting the trial of the action. As consideration for his services, Taylor was to receive one-third of Kelsey’s contingent fee if the case were to settle before trial and one-half of the contingent fee should the case go to trial. In October 1979, the case was settled before trial and Kelsey discharged Taylor and refused to pay him any part of the fee. Taylor asserted in the pending action that he was entitled to one-third of Kelsey’s fee; Kelsey resisted. 503 F.Supp. at 254.

Judge Merhige found that there existed no independent basis for jurisdiction over the dispute between Taylor and Kelsey, and that the Court could hear plaintiffs claim, if at all, only under the doctrine of ancillary jurisdiction. Id. Judge Merhige proceeded to note that “in certain circumstances a federal court may assume ancillary jurisdiction over a claim for attorney’s fees arising out of a matter properly before the Court.” Id. at 255. Those circumstances include a situation in which a court’s order is conditioned upon payment of attorney’s fees or “where the claim relates to assets in the actual or constructive possession of the Court.” Id. Judge Merhige concluded that:

[Tjhere is no connection between the underlying action and the instant fee controversy which would justify an assumption of ancillary jurisdiction. The subject matter of the contractual dispute between the two attorneys has no relation whatever to that of the concluded diversity action; the Court does not have possession or control of the funds against which Taylor has asserted a lien; and none of the parties to the underlying action have any interest in the outcome of this controversy. Additionally, considerations of judicial economy and fairness do not militate in favor of federal jurisdiction.

Id.

The Fourth Circuit affirmed Judge Merhige’s decision. Its reasoning in full was as follows:

We agree with the district court. The fee dispute did not arise as a matter of necessity from anything which occurred in the proceedings of the ... litigation, nor did the district court have control over the fee in the sense that the court was required to establish and distribute a fee. Instead, the controversy arose purely from a private contract dispute between two Virginia residents. Under these circumstances, we see no basis for ancillary jurisdiction.

Taylor v. Kelsey, 666 F.2d at 54 (citing Fairfax Countywide Citizens Association v. County of Fairfax, 571 F.2d 1299 (4th Cir.1978) and Bounougias v. Peters, 369 F.2d 247 (7th Cir.1966)).

In Adams, Judge Merhige referred to a 1951 case, American Federation of Tobacco Growers, Inc. v. Allen, 186 F.2d 590 (4th Cir.1951), in which the Fourth Circuit had found ancillary jurisdiction on facts similar to those in Adams. In Allen, a settlement of $57,000 had been reached, $15,000 of which had been paid to local counsel as the fee due plaintiffs counsel. Foreign counsel, who actually had been lead counsel, received nothing from local counsel in the way of a share in the fee. Foreign counsel thereupon petitioned the court to fix attorney’s fees in the case and to award him his proper share. The court, after hearing evidence, found that a reasonable fee was $15,000 and that the foreign attorney was entitled to one-half of that amount. Id. at 591. The Fourth Circuit affirmed the district judge’s decision, holding that the order appealed from was “well within the power of the court.” Id. The Court went on to hold that:

[T]he controversy is ancillary to the handling of a case in the federal court, the attorney who alleges that he has been mistreated is an officer of the court engaged in the handling of the case there pending, and the controversy relates to funds received by a party in a settlement of the case, which will not be settled and out of court until final judgment is entered, and this has not yet been done. If the settlement had brought the $57,000 into the treasury of the court, no one would dispute its power to fix the fees of counsel and direct their payment; but it is manifest that the court’s power in the premises is no less merely because one of the parties before the court has taken the funds into its own possession instead of having them paid into the hands of the clerk.

Id. at 592.

Judge Merhige in Adams v. Allied Chemical Corp., distinguished Allen, noting that in Allen “one of the parties to the fee dispute was a party to the underlying action,” whereas in Adams such was not the case. Adams, 503 F.Supp. at 255. Judge Merhige went on to state that, “This Court has serious misgivings in concluding that the mere fact that the instant issue arose during the course of a case properly before it, gives rise to the invocation of ancillary jurisdiction,” and therefore he declined to exercise jurisdiction over the controversy in Adams. Id. at 256.

The action presently before the Court is factually and legally more similar to American Federation of Tobacco Growers v. Allen than it is to Adams v. Allied Chemical Corp. The lawyer involved here “is an officer of the Court engaged in the handling of the case, ... the controversy relates to the funds received by a party in settlement,” and the party “who alleges he was mistreated” was the plaintiff in the underlying lawsuit. As in Allen the fund was paid to counsel for disbursement rather than to the clerk. The only significant difference is that this action was settled on appeal from final judgment while Allen was still pending in the trial court.

My reading of Taylor v. Kelsey is that the Fourth Circuit did not intend to and in fact did not overrule its holding in Allen. The Fourth Circuit’s holding in Allen requires this Court to retain ancillary jurisdiction over the fee dispute in this case.

Allen is consistent with guiding principles delineated by Judge Merhige in Adams for determining whether the district court may exercise ancillary jurisdiction over a fee dispute such as the one in the instant case. See Adams v. Allied Chemical Corp., 503 F.Supp. at 255. Although this Court does not have “possession or control” of the disputed funds, there is no question that the subject matter of the dispute between plaintiff and his attorney bears a relation to the concluded principal action, and that one of the parties to the underlying action, i.e., plaintiff, has an interest in the outcome of the immediate controversy as does counsel of record. The factors listed by Judge Merhige in Adams v. Allied Chemical Corp. favor this Court’s retaining jurisdiction over this fee dispute.

Plaintiff's lawyer is an officer of the Court and was one at the time the principal action was in litigation. This Court is obligated to look into allegations of misconduct of an officer of the Court which arise from proceedings before this Court. The purpose of such investigation is to enable plaintiff to recover funds wrongfully withheld by an officer of the Court should plaintiff’s allegations be found to be true; to remove any cloud over plaintiff’s lawyer’s name that might have resulted from plaintiff’s allegations should those allegations be found untrue; or to resolve an unfortunate misunderstanding between counsel and client should that, the most likely alternative, prove to be the circumstances of this case.

For these reasons, this Court will exercise ancillary jurisdiction over the dispute between plaintiff and his lawyer. The lawyer’s motion to dismiss is DENIED. Since this Court is exercising ancillary jurisdiction over the claim, plaintiff is not required to file a separate action in this Court, nor is plaintiff required to serve a summons and complaint to give notice of the commencement of a separate action. Furthermore, plaintiff has alleged sufficient facts to preclude a dismissal of this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The parties are DIRECTED to contact my secretary to arrange a hearing with respect to plaintiff’s motion to recover withheld funds.

And it is so ORDERED.


author: RYAN, District Judge.

text:
    AETNA CASUALTY & SURETY COMPANY, a corporation, Plaintiff, v. Carl M. FAIRCHILD, John Francis Richards, Terry F. Kerr, Lana L. Kerr, and/or Carl M. Fairchild and Carl O. Fairchild, d/b/a Division I, American Universal Insurance Company and May Trucking Company, an Idaho corporation, Defendants. GRANITE STATE INSURANCE COMPANY, a corporation, Plaintiff in Intervention, v. AETNA CASUALTY & SURETY COMPANY, a corporation, Carl M. Fairchild, John Francis Richards, and May Trucking Company, an Idaho corporation, Defendants in Intervention.
    Civ. No. 83-1509.
    United States District Court, D. Idaho.
    Jan. 16, 1986.

      R.B. Kading, Jr., Howard W. Carsman, Eberle Berlin Kading Turnbow & Gillespie, Boise, Idaho, for Aetna Cas. & Sur. Co.
    Gregory R. Giometti, Quane Smith Howard & Hull, Boise, Idaho, for American Universal Ins. Co.
    Charles F. McDevitt, Givens McDevitt Pursley Webb & Buser, Boise, Idaho, for May Trucking Co.
    R.B. Rock, Kirk B. Helvie, Moffatt .Thomas Barrett & Blanton, Boise, Idaho, for Granite State Ins. Co.
   ORDER

RYAN, District Judge.

On January 14, 1986, the court heard oral argument on Aetna Casualty & Surety Company’s (Aetna) Motion for Reconsideration. Aetna seeks reconsideration of the court’s earlier order granting summary judgment in favor of American Universal Insurance Company (American). In granting summary judgment in favor of American, the court declared that the American policy did not provide coverage because the antedated public liability endorsement was procured by fraud and, therefore, was void ab initio.

The court finds, upon reconsideration, that the record currently before the court does not establish undisputed facts supporting American’s position. The court is unable to hold as a matter of law that coverage did not exist under the policy in effect at the time the accident occurred or under the public liability endorsement subsequently issued. Consequently, the motion to reconsider is well taken and that portion of the court’s October 23, 1985, 620 F.Supp. 1245, order granting American’s Motion for Summary Judgment must be rescinded.

The court also notes that Aetna has implicitly sought summary judgment on its behalf through its motion to reconsider. Again, the record reflects a dispute of facts on the issue of coverage under both the pre-accident policy and the public liability endorsements issued subsequent to the accident.

Based upon the foregoing and the court being fully advised in the premises,

IT IS HEREBY ORDERED that Aetna’s Motion for Reconsideration should be, and is hereby, GRANTED.

IT IS FURTHER ORDERED that that portion of the court’s October 23, 1985, order granting American’s Motion for Summary Judgment should be, and is hereby, RESCINDED.

IT IS FURTHER ORDERED that all discovery in this matter shall be completed on or before April 30, 1986.

IT IS FURTHER ORDERED that the parties shall file with the court a written status report on or before May 9, 1986, which report shall outline the efforts and progress towards settlement, possibility of settlement, prospective trial time, and any other information reasonably necessary to advise the court of the posture of the case.


author: RE, Chief Judge:

text:
    EAC ENGINEERING, DIVISION OF the EAST ASIATIC COMPANY, INC. Plaintiff, v. The UNITED STATES of America, Defendant.
    Court No. 82-1-00096.
    United States Court of International Trade.
    Nov. 26, 1985.
    Metzger, Shadyac & Schwarz, Carl Schwarz, Washington, D.C., and Wesley K. Caine, McLean, Va., for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty.-in-Charge, Intern. Trade Office, Commercial Litigation Branch, Jerry P. Wiskin, New York City, for defendant.
   Memorandum Opinion and Order

RE, Chief Judge:

This memorandum opinion and order is being issued to set forth an appropriate schedule to implement this Court’s memorandum opinion and order dated October 24, 1985, EAC Engineering Div. of the East Asiatic Co. v. United States, 9 CIT —, 623 F.Supp. 1255 (1985).

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from the Federal Republic of Germany, and described on the customs invoices as “spark detection systems.” Customs had classified the merchandise as “optical instruments” under item 712.05, TSUS.

Plaintiff protested this classification, contending that the merchandise was properly classifiable under item 712.15, TSUS, as “Instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or similar radiations, and parts thereof.” Alternatively, plaintiff claimed that the merchandise was classifiable under item 712.49, TSUS, a “basket” provision for electrical measuring and checking instruments, or under items 688.40 and 688.45, TSUS, depending on the year of importation, as electrical articles not specially provided for.

On the parties’ cross-motions for summary judgment, this Court determined that the Customs Service’s original classification of the imported “spark detectors” as “optical instruments” under item 712.05, TSUS, was incorrect. In its brief, the defendant conceded that, if the imported spark detectors had been improperly classified as “optical instruments,” they were classifiable as “other” electrical measuring, analyzing, or automatically controlling instruments and apparatus under item 712.-'49, TSUS. Notwithstanding the concession, there was still a question whether the merchandise was properly classifiable under that “basket” provision, or under the more specific provision for radiation measuring or detecting equipment, item 712.15. Since material issues of fact pertaining to these alternative classifications remained unresolved, the Court remanded the action to the Customs Service. The remand was intended to permit the Customs Service to consider the plaintiff’s proposed alternative classifications at the administrative level, and to determine the appropriate classification of the imported merchandise.

Remand to the Customs Service in a classification case is a novel procedure which had not been authorized prior to the Customs Courts Act of 1980. Hence, it is appropriate to set forth a procedure for the remand that will expedite resolution of the relevant issues, and conserve judicial and administrative resources.

Prior to the 1980 Act, the Court had no power to reclassify merchandise if the plaintiff’s proposed classification was not proven correct, even when the government’s classification was clearly incorrect. Since, under the former procedure the function of the Court was to pass upon the validity of plaintiff’s protest, “rather than on the merits of the case,” the court would overrule the protest “without affirming the classification.” See, e.g., Mitsubishi International Corp. v. United States, 78 Cust.Ct. 4, 20, C.D. 4686 (1977); In re Solvay Process Co., 134 Fed. 678, 680 (C.C. N.D.N.Y.1905). In order to remedy the unfairness that on occasion resulted from this rule, Congress amended the statute to mandate that a correct classification be reached in every case. EAC Engineering, supra, 9 CIT at —, 623 F.Supp. 1255. To achieve this result, the Court itself may determine the correct classification, or remand the case to the administrative agency. Id. (quoting Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir. 1984)). In Jarvis Clark Co. v. United States, 733 F.2d 873 (1984), the Federal Circuit explained: “By granting the power to remand or to retry an action, § 2643(b) eliminates the dual burden’s potential for unfairness while providing the government an opportunity to develop evidence as to classifications not previously considered.” Id. at 877.

In this case, since material issues of fact remained unresolved, the Court remanded the case to allow the Customs Service, in the first instance, to consider the plaintiff’s proposed alternative classifications, and determine the appropriate classification of the imported merchandise. The remand was intended to permit the agency to exercise its expertise on the questions presented, and to conserve judicial and administrative resources. Thus, even if the plaintiff were to challenge Custom’s determination on remand, and the proper classification would ultimately have to be judicially decided, the Court would nevertheless benefit from the administrative consideration and determination.

As a general principle of administrative law, a court remanding an action to an agency usually will allow the agency to determine the proper procedure or method to effectuate the court’s order. See, e.g., FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 333, 96 S.Ct. 579, 583, 46 L.Ed.2d 533 (1976); Freeport Minerals Co. v. United States, 758 F.2d 629, 636 (Fed.Cir.1985); cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 544-45, 98 S.Ct. 1197, 1211-12, 55 L.Ed.2d 460 (1978). In this case, however, in order to permit the most efficient and economic resolution of this dispute, it is appropriate for the Court to retain jurisdiction, and to set forth a schedule for the remand.

If the classification issue remains in dispute after Customs’ redetermination, it would be an unnecessary waste of judicial and administrative resources to require Customs to reliquidate the merchandise, and the plaintiff to file a second protest and commence a new action in order to obtain judicial review. By retaining jurisdiction, the Court does not intend to interfere in any way with the agency’s procedures or processes for determining the proper classification of the merchandise on remand. Rather, the retention of jurisdiction will permit the classification issue, if it is still in dispute, to be judicially decided without unnecessary cost and delay. To require the parties to repeat the normal or usual procedural formalities would be little more than an empty and costly gesture that would frustrate a major purpose in remanding the action, that is, the expeditious resolution of this dispute. Accordingly, it is hereby

ORDERED that the Customs Service shall determine the proper classification of the merchandise that is the subject matter of this action, and shall notify the plaintiff and this Court in writing of its determination within 60 days of the date of this order. It is further

ORDERED that the plaintiff, if it is dissatisfied with Customs’ determination, shall have 30 days from the date of service of Customs’ determination on remand within which to file a motion for summary judgment, or a proposed scheduling order pertaining to the further prosecution of this action; and it is further

ORDERED that if the Plaintiff does not file a motion for summary judgment or a proposed scheduling order within 30 days of service of Customs’ determination, this Court shall enter a final judgment ordering Customs to reliquidate the subject merchandise in accordance with Customs determination on remand.

So ordered.


author: JOYCE HENS GREEN, District Judge.

text:
    DOW, LOHNES & ALBERTSON, Plaintiff, v. PRESIDENTIAL COMMISSION ON BROADCASTING TO CUBA, et al., Defendants.
    Civ. A. No. 82-0929.
    United States District Court, District of Columbia.
    Jan. 28, 1984.
    Leslie H. Wiesenfelder, Dow, Lohnes & Albertson, Washington, D.C., for plaintiff.
    Robert E.L. Eaton, Jr., Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiff brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 to compel production of documents relating to radio broadcasting to Cuba. Defendants Presidential Commission on Broadcasting to Cuba (“Commission”) and National Telecommunications and Information Administration (“NTIA”) have withheld 47 documents in whole or in part, claiming the protection of various FOIA exemptions, the attorney-client privilege and the attorney work-product privilege, to justify nondisclosure. Currently before the Court are the cross motions of plaintiff and defendants for summary judgment.

Plaintiffs FOIA request, which was submitted to both defendants in March of 1982, sought disclosure of material relating to:

1. Radio broadcasting to Cuba;
2. The establishment of and/or proposals to establish a facility for broadcasting to Cuba, including, but not limited to, a facility popularly known as “Radio Marti”;
3. The assignment of a frequency in either the government or non-government spectrum for broadcasting to Cuba. This would include, but not be limited to, all studies on frequency searches, analyses and assignments for broadcasting to Cuba and/or the extent of potential interference to non-government broadcast stations in the United States by broadcasting to Cuba and/or Cuban measures to jam or otherwise counter such broadcasts;
4. All studies relating to the likelihood or capacity of Cuba to cause interference to a United States Government station broadcasting to Cuba;
5. All studies relating to the likelihood or capacity of Cuba to cause interference to non-government broadcasting stations in the United States;
6. The use of Radio Marathon, a Voice of America operated broadcasting facility located in Florida, for broadcasting to Cuba. This would include, but not be limited to, studies prepared in the late 1950’s and/or the early 1960’s, concerning broadcasting to Cuba on Radio Marathon;
7. The number of TV, AM, FM and short wave receivers in Cuba;
8. The extent and quality of reception in Cuba of United States TV, AM, FM and shortwave broadcasts; and
9. Minutes of the closed meeting of the Presidential Commission on Broadcasting to Cuba held Tuesday, March 2, 1982, and the minutes of all other closed meetings held at any other time.

In response to that request, both defendants made substantial disclosures to plaintiff, but withheld all or part of 47 documents (32 of defendant Commission and 15 of defendant NTIA), asserting the applicability of FOIA Exemptions (b)(1) (the national security exemption), (b)(5) (the deliberative process privilege) and/or (b)(3) (applicable to material specifically exempted from disclosure by certain other statutes). Defendant NTIA also asserts that the attorney-client privilege and the work-product privilege shield one document from plaintiff’s FOIA request. To support their claims of exemption and privilege, defendants have submitted the declaration of Frank M. Machak of the Foreign Affairs Information Management Center of the Department of State which processed plaintiff’s FOIA request, the affidavit of Thomas W. Ainsworth, the official directly responsible for the review of Department of State documents pursuant to FOIA (“Ainsworth Affidavit”) and the affidavit and supplement of Richard H. Shay, chief counsel and FOIA officer for defendant NTIA (“Shay Affidavit”, “Supplemental Shay Affidavit”). The latter three provide a brief description of each document at issue and detail defendants’ specific objections to disclosure, and constitute defendants’ Vaughn indices. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). There has been no in camera inspection of the materials at issue.

Plaintiff challenges defendants’ application of the privilege and FOIA exemptions and further contends that the contents of many of the documents at issue have been previously disclosed and therefore do not warrant the protection of FOIA exemptions. This argument and the asserted grounds for nondisclosure will be discussed individually below.

The (b)(5) Exemption

Defendants assert that Exemption (b)(5) justifies the non-disclosure of all or part of 41 documents. This exemption permits withholding of “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The primary purpose of this deliberative process privilege is to permit agency decisionmakers to “engage in that frank exchange of opinions and recommendations necessary to the formulation of policy without being inhibited by fear of later public disclosure”. Paisley v. Central Intelligence Agency, 712 F.2d 686, 698 (D.C.Cir.1983), vacated in part on rehearing at 724 F.2d 201 (D.C.Cir.1984); see also Murphy v. Tennessee Valley Authority, 571 F.Supp. 502, 504 (D.D.C.1983). To warrant protection under (b)(5), documents must be both predecisional and deliberative in nature; that is, they must be generated as part of a definable decisionmaking process that results in a final agency decision and they must reflect the “give-and-take” flow of opinions, recommendations or advice between the policymakers formulating that decision. Paisley at 698; Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C.Cir.1980). Documents which implement an established policy do not fall within the exemption, Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.Cir.1978), nor do documents which have been accorded authoritative or precedential weight by the agency. Schlefer v. United States, 702 F.2d 233, 237 (D.C.Cir.1983).

The agency asserting a (b)(5) claim of exemption bears the burden of demonstrating that the subject documents are predecisional and deliberative. Schlefer v. United States, 702 F.2d at 237; Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.Cir.1975). Affiants Ainsworth and Shay attempt to do so by stating that the information withheld under a (b)(5) claim reflects communications and internal deliberations preparatory to the formulation of policy regarding various aspects of the Radio Marti project. Examples of information withheld include recommendations of a subordinate official to the Assistant Secretary for American Republic Affairs (ARA) as to courses of action with Congress to achieve legislation authorizing Radio Marti (C-17), judgments and recommendations concerning congressional attitudes contained in a briefing memorandum advising the Assistant Secretary for ARA of matters concerning Radio Marti in preparation for congressional hearings on the project (C-53), and NTIA briefing notes discussing proposed U.S. Government plans in activating “Radio Free Cuba” (S-5).

Plaintiff argues that none of the materials at issue satisfies the predecisional requirement of Exemption 5. In plaintiff’s view, the relevant “agency decision” for (b)(5) purposes was the National Security Council’s decision to pursue radio broadcasting to Cuba, which was announced on June 4, 1981. According to plaintiff’s theory, all subsequent discussions and planning as to technical aspects of Radio Marti, funding decisions, legislative strategy and the like concern implementation of the June, 1981 decision rather than formulation of policy in its own right.

Plaintiff's premise will not withstand analysis. A decision to “pursue” radio broadcasting is, in effect, a decision to make more decisions. The governmental objective announced in June of 1981 was broadly stated and ill-defined, raising numerous issues for later resolution. These issues, including the choice of broadcast frequency, potential funding sources to be investigated, and courses of action on Capitol Hill were not mere details to be worked out but rather matters requiring further study and generating debate which culminated in the making of new policy. The “predecisional” requirement of the (b)(5) exemption is satisfied.

Plaintiff also disputes that disclosure of the documents at issue would reveal the “deliberative” process protected by Exemption 5. Although defendant has difficulty separating this discussion from the one preceding, the point is made that given the subject matter of the documents at issue, it is likely that defendants may have withheld purely factual material which can be severed from any advice, conclusions or recommendations contained in the undisclosed documents. Such information would not be protected from disclosure under Exemption 5. ITT World Communications, Inc. v. F.C.C., 699 F.2d 1219, 1236 (D.C.Cir.1983). Whether plaintiffs suspicions are correct cannot be determined from the public record currently before the Court. Only by inspection of the materials withheld under (b)(5) can it be established that defendants did or did not properly apply that exemption, and accordingly, defendants shall be directed to provide those excised materials to the Court for an in camera review.

The (b)(1) Exemption

Under Exemption (b)(1), an agency may withhold documents only if they apply to matters which are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1).

Defendant Commission claims that this exemption justifies nondisclosure of part or all of 13 documents sought by plaintiff, all of which have been classified under Section 1.3 of Executive Order No. 12356, 47 Fed. Reg. 14874 (Apr. 6,1982) and the applicable State Department regulations at 22 C.F.R. 9, 12. In pertinent part, Section 1.3(a) states that “information shall be considered for classification if it concerns: ... (3) foreign government information; (4) ... intelligence activities (including special activities), or intelligence sources or methods; (5) foreign relations or foreign activities of the United States.” Section 1.3(b) further states that information concerning one or more of the categories set forth in part (a) “shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to national security.” Section 1.3(c) states that “unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods, is presumed to cause damage to the national security.”

Defendant NTIA asserts exemption (b)(1) as one basis for nondisclosure of four documents requested by plaintiff, each of which has also been classified under Executive Order No. 12356.

In assessing an agency’s application of the (b)(1) exemption, this Court must consider de novo the propriety of the withholding, Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1104 (D.C.Cir.1982); Jaffe v. Central Intelligence Agency, 573 F.Supp. 377, 383 (D.D.C.1983). The burden of proof is on the agency to sustain its claim to the exemption, 5 U.S.C. § 552(a)(4)(B), but in national security cases the Court is to accord “substantial” weight to the agency’s determinations as set forth in affidavits. Gardels, 689 F.2d at 1104; American Civil Liberties Union of New Jersey v. Dep’t of Justice, 548 F.Supp. 219, 222 (D.D.C.1982). If the Court is able to make a responsible de novo determination on the claims of exemption on the basis of the public record, in camera review is neither necessary nor appropriate. Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979); American Civil Liberties Union of New Jersey v. Dep’t of Justice, 548 F.Supp. at 222. Plaintiff does not dispute that the proper procedures were followed in classifying the documents; therefore, if the affidavits demonstrate that the items meet the substantive criteria for classification under Executive Order No. 12356, that is, if disclosure of the documents could reasonably be expected to cause damage to national security, and if the affidavits contain reasonable specificity of detail and are not called into question by contradictory evidence of agency bad faith, summary judgment may be granted. Gardels, 689 F.2d at 1105; Halperin v. Central Intelligence Agency, 629 F.2d 144, 148 (D.C.Cir.1980).

The information withheld by defendants under Exemption (b)(1) can be divided into two categories: that which would raise a presumption of damage to the national security under Section 1.3(c) of Executive Order No. 12356, and that which would not. The first category encompasses “foreign government information” and the identity of confidential foreign sources, intelligence sources and intelligence methods. The Ainsworth Affidavit asserts that material excised from documents C-38 and C-46 corresponds to information received from intelligence sources and that C-4, C-113, C-117 and C-119 contain information conveyed in confidence by a foreign government. Plaintiff has neither rebutted the presumption which follows nor raised the specter of agency bad faith, and therefore, with respect to those deletions, defendants shall be granted summary judgment of their (b)(1) claims. Compare Carlisle Tire & Rubber Co. v. U.S. Customs Service, 663 F.2d 210, 216-19 (D.C.Cir.1980).

The remaining documents include internal agency Department memoranda discussing plans for Radio Marti operations (C-6), legislative status and strategy relating to Radio Marti (C-17, C-29), technical and foreign affairs matters relating to Radio Marti transmission (C-34), interagency reports on' radio broadcasting to Cuba (C-109, C — 110), a telegram from the U.S. Interests Section at Havana (the U.S. Government representative organization) containing recommendations concerning the decision to establish a facility for broadcasting to Cuba (C-115), and assessments of the impact on U.S. interests (U.S. broadcasters and Cuba) of publishing a particular proposed Executive order (S-l, S-2, S-4, S-5). These documents concern “foreign relations”, one of the categories for classification under Executive Order No. 12356, but they do not raise a presumption of damage to the national security. Defendants must therefore carry the burden of proving such damage if their (b)(1) claims are to succeed. Defendants assert that disclosure of these documents would facilitate Cuban countermeasures in response to Radio Marti (C-6, C-17, C-29, C-34, C-38, C-109, C-110) and/or reveal to the Cubans sensitive expressions of opinion and analysis regarding U.S. foreign relations with Cuba (C-115, S-l, S-2, S-4, S-5). Briefly summarized, plaintiffs arguments in response are that the excised information addresses details of the project which do not rise to the level of a national security risk, that U.S. foreign policy will not be measurably affected by whether or not the Radio Marti project advances as it is likely (according to plaintiff) that entertainment, music and sports will dominate the programming, that any adverse effects of Cuban countermeasures would be on uninformed Cubans and the commercial radio stations receiving interference rather than on U.S. security, and that the danger of facilitating Cuban countermeasures is of little consequence, as Cuba has already demonstrated its ability to jam the frequency to which Radio Marti was at one time tentatively assigned. Plaintiff also raises the issue of prior disclosure, which will be discussed separately below.

Plaintiff’s arguments fail to undermine defendants’ position that release of the subject documents could reasonably be expected to cause damage to the national security. Defendants understandably take a broader view of national security than does plaintiff, but one need not stretch the definition of that term to conclude that disclosure of the information described by affiant Ainsworth may well constitute a risk to U.S. security. That the unexcised, portions of some of the documents at issue deal with mundane details proves nothing: their innocuous content explains their release but sheds no light on the nature of the excised portions. Furthermore, it is unlikely that Radio Marti’s programming content will negate the impact of the project on U.S./Cuban foreign relations. On the contrary, the State Department document upon which plaintiff relies in making that assertion reveals that although feature programs might be included to provide broad-based appeal, the primary thrust of Radio Marti will be to present news and information, focusing on “the government’s mismanagement of domestic affairs and its promotion of subversion and terrorism abroad while, at the same time, underscoring the high cost this imposes on the living standards of all Cubans.” (Plaintiff’s Exh. K at 13-14). Whether or not one supports that objective, it is undeniably a matter of foreign policy. It is likewise undeniable that the impact of transmission interference will be felt not only in Cuba and the private sector of American broadcasting but also in the U.S. foreign relations. Finally, plaintiff’s argument that “Cuba knows how to jam” radio transmissions and has done so in the past does not undermine defendants’ claim that, in the interests of national security, the technical details of Radio Marti should not be made public. Plaintiff in effect concedes that defendants’ fears of countermeasures are real and well-founded, not merely the product of paranoid speculation on the part of government officials. Whether release of the particular information contained in these documents would add to the technical know-how of would-be interferors is uncertain, but the defendants are justified in resolving any doubt on the side of national security interests.

In sum, each of the claims of Exemption (b)(1) raised by defendants and particularized in the Ainsworth Affidavit and Supplemental Shay Affidavit is properly asserted. The classification of the subject materials under Executive Order No. 12356 was procedurally correct and warranted by the substance of the documents. Accordingly, summary judgment of defendant Commission’s (b)(1) claims shall be granted.

The (b)(3) Exemption

Exemption (b)(3) shields that information specifically exempted from disclosure by certain statutes. This exemption is invoked here with reference to only one document, C-46, from which defendant Commission has excised information received from the Central Intelligence Agency as well as the names of two CIA employees. Defendant Commission contends that 50 U.S.C. § 403g protects this information from disclosure and thus brings it within the scope of Exemption (b)(3). Plaintiff does not contest defendant’s deletion of the names of the CIA employees. The remainder of the information at issue has already been found exempt from disclosure under (b)(1) and therefore, defendant’s claims under (b)(3) need not be addressed.

Prior Disclosure

Plaintiff asserts that various of the documents withheld by defendant Commission and defendant NTIA do not warrant the protection of FOIA exemptions because they have been subject to prior disclosure.

With respect to documents C-6, C-34, C-38, C-109, H-l, H-3, H-6, H-7, H-8, S-l, S-2 and S-4, although plaintiff asserts that the information contained therein has been released to the public in the course of congressional hearings and defendants’ own information releases, plaintiff fails to demonstrate that the withheld information has already been specifically revealed to the public as required under Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C.Cir.1983); see also Lamont v. Department of Justice, 475 F.Supp. 761, 772 (S.D. N.Y.1979). Plaintiff makes general assertions, such as that facility design plans have been publicly discussed, or that some assessments of the possible impact on U.S. interests of radio broadcasting to Cuba have been released, but not that the particular discussions recorded in the documents sought by plaintiff have become public knowledge. Unless plaintiff can demonstrate that specific information in the public domain appears to duplicate that being withheld, it has failed to bear its burden of showing prior disclosure. See Afshar at 1130.

Plaintiff maintains that disclosure of the contents of document C-4 occurred in March, 1982 when a State Department official permitted members or representatives of plaintiff’s office to view the document, and plaintiff relies on Cooper v. Internal Revenue Service, 450 F.Supp. 752, 753 (D.D.C.1977) in arguing that FOIA exemptions therefore no longer apply. That reliance elastizes Cooper too generously. In Cooper, the Court held that once certain tax records had been released to the Tax Court and opened to public inspection, they could not regain their confidential nature when returned to the IRS and thus were not subject to the exemptions of FOIA. The circumstances of the C-4 disclosure, as related by plaintiff, are not comparable. Although the State Department official permitted plaintiff’s representatives to read the document, he did not allow them to make a photocopy. At most, the official intended a limited disclosure to a small group of people (which would hardly inhibit candid agency decisionmaking), not a general public inspection. If the subject portions of C-4 are found to be predecisional and deliberative, this limited disclosure will not strip the document of (b)(5) protection.

Attorney-Client Privilege and Attorney Work-Product Privilege

Defendant NTIA asserts that under the attorney-client privilege and the attorney work-product privilege, document H-4 is exempt from disclosure. Defendant bears the burden of demonstrating that this document falls within the attorney-client privilege, Schlefer v. United States, 702 F.2d 233, 237 (D.C.Cir.1983); however, the facts asserted in the Shay Affidavit and Supplement thereto do not make that showing. According to affiant Shay, document H-4 is a memorandum addressing the legal ramifications of frequency assignment for the Radio Marti project. It was prepared by a staff attorney at affiant Shay’s direction in response to the request of the Assistant Secretary. Defendant asserts that because H-4 was generated by an attorney and contains advice to the client with the understanding that it would remain confidential, it qualifies for protection under the attorney-client privilege. However, even in response to the pointed challenges of plaintiff, defendant has not stated that the information contained in H-4 was never shared with third parties. That the document was prepared and received with an understanding of confidentiality will not suffice: confidentiality must have been maintained, or the claim of privilege is lost. Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C.Cir.1981); Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 253 (D.C.Cir.1977). Lacking assurance that the contents of H-4 were not shared with third parties, the Court cannot uphold defendant’s assertion of the attorney-client privilege here.

Defendant NTIA also asserts that because document H-4 “sets forth the attorney’s theory of the case, litigation strategy, and recommends a possible course of action by NTIA in the face of potential litigation” (Shay Supp. Aff. at II17), the attorney work-product privilege is applicable and justifies nondisclosure. Plaintiff makes no response to this argument, perhaps recognizing that unlike the attorney-client privilege, the work-product privilege does not rest upon a foundation of confidentiality and can survive some voluntary disclosure to third parties. See Permian Corp. v. United States, 665 F.2d at 1219, United States v. AT & T, 642 F.2d 1285, 1299 (D.C.Cir.1980). Furthermore, if the subject material is properly classified as work-product under Exemption 5, it is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared. F.T.C. v. Grolier, Inc., 462 U.S. 19, 103 S.Ct. 2209, 2215, 76 L.Ed.2d 387 (1983). Therefore, the success of defendant’s claim depends wholly on whether document H-4 is in fact “work product”; that is, “material prepared in anticipation of litigation or for trial.” Fed. R.Civ.P. 26(b)(3). Based on the uncontroverted statement of affiant Shay that H-4 contains “litigation strategy” and recommends a course of action in the event that litigation should arise, it may fairly be called work product, and is accordingly privileged against disclosure.

In accordance with the findings and conclusions of this Memorandum Opinion, it is, by the Court, this 20th day of January, 1984

ORDERED that the motion of plaintiff Dow, Lohnes & Albertson for summary judgment be, and it hereby is denied; and it is further

ORDERED that the motion of defendants for summary judgment be and it hereby is granted with respect to those claims of exemption asserted under 5 U.S.C. § 552(b)(1), and it is further

ORDERED that the motion of defendant NTIA for summary judgment based on the attorney work-product privilege with respect to document H-4 be and it hereby is granted, and it is further

ORDERED that in all other respects, the motion of defendants for summary judgment be, and it hereby is, denied; and it is further

ORDERED that by February 6, 1984 defendants provide to the Court for in camera review the complete text of those documents as to which claims of exemption are asserted under 5 U.S.C. § 552(b)(5), highlighting or otherwise identifying those portions already disclosed to plaintiff.

      . These documents are numbered C-6, C-ll, C-12, C-13, C-14, C-17, C-27, C-30, C-34, 0-37, C-38, C-46, C-50, C-52, C-53, C-60, C-61, C-62, C-109, C-110, C-120, C-123, C-124, C-125, C-126, C-128, H-l, H-2, H-3, H-4, H-5, H-6, H-7, H-8, S-l, Sr2, S-4, S-5, S-6, S-7, and S-8.

      . Plaintiffs reliance on Sierra Club v. Morton, 395 F.Supp. 1187, 1191 (D.D.C.1975), for the proposition that funding issues are not predecisional is unconvincing, as that case involved "appropriation proposals ... made after the budget decision has been made or the policy already adopted.” The preliminary investigations into possible funding sources at issue here do not fall within the limited scope of that holding.

      . For example, plaintiff's assertion that "the consultative give-and-take process applies to the formulation of policy, not to the formulation of implementation of policy” (Plaintiffs Points and Authorities in Support of Motion for Summary Judgment at 8) addresses the "predecisional” prong, not the "deliberative” prong of the Exemption 5 inquiry.

      . These documents are identified as C-4, C-6, C-17, C-29, C-34, C-38, C-46, C-109, C-110, C-113, C-115, C-117 and C-119.

      . These documents are labeled S-l, S-2, S-4 and S-5.

      . Factors relevant to this inquiry include the “judicial economy" of conducting in camera inspection, the presence of bad faith on the part of the agency, the conclusory nature of agency affidavits, the public interest in disclosure and the posture of the party proposing in camera review. Allen v. Central Intelligence Agency, 636 F.2d 1287, 1298-99 (D.C.Cir.1980). This is not a case in which in camera inspection is "plainly necessary" as there is no showing of bad faith, the affidavits submitted sufficiently describe the information withheld and the grounds for nondisclosure, and the agency has not proposed in camera review.

      . The radio frequency assigned to Radio Marti has since been changed.


author: GASCH, District Judge.

text:
    CRIME CONTROL, INC., Plaintiff, v. CRIME CONTROL, INC., Defendant.
    Civ. A. No. 83-2212.
    United States District Court, District of Columbia.
    April 12, 1984.

      John W. Karr, Washington, D.C., for plaintiff.
    Philip L. Cohan, Donald D. Evenson and Ryan M. Fountain, Washington, D.C., for defendant.
   MEMORANDUM

GASCH, District Judge.

The plaintiff seeks a declaratory judgment and injunction under the Lanham Trademark Act, 15 U.S.C. § 1051 et seq. (“Lanham Act”). The Court heard oral argument on the plaintiff’s motion for preliminary injunction on October 27, 1983. At the plaintiff’s request, the Court stayed determination on that motion to give the parties an opportunity to resolve their difficulties informally.

The Court has now been informed that these efforts have floundered. Accordingly, the Court has reviewed the memoranda and affidavits submitted by the parties and the arguments of counsel in open court. For reasons that are explained below, the Court grants the plaintiff’s motion for preliminary injunction. The following discussion constitutes the Court’s findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure.

BACKGROUND

The plaintiff is a private corporation that has conducted business under the name Crime Control since 1969 in the District of Columbia, Maryland and Virginia. It designs, markets, installs and maintains electronic security systems. In October 1982, the United States Patent and Trademark Office registered the name “Crime Control” as plaintiff’s trademark.

The defendant is an Indiana corporation, organized in 1977, that purchased the local (Maryland) Beltway Alarm Company in 1980. At that time it began soliciting lease agreements for security alarm systems in Maryland and the District of Columbia. The defendant subsequently expanded its operations in the Washington, D.C. area by acquiring other alarm companies, including Seaboard Service Systems of Beltsville, Maryland, and Bur-Tel Security of Alexandria, Virginia.

For a short time after it began doing business in Maryland and the District the defendant used a lease agreement that identified the lessor as “Beltway Alarm Company, Division of Crime Control, Inc. (an Indiana corp.).” That form has been replaced by another in which the lessor is referred to only as “Beltway Alarm Company.” In several other respects, however, the defendant continues to hold itself out to the public in the Washington, D.C. area as Crime Control. In October of 1983 the defendant issued press releases under the name Crime Control that described the defendant as “one of the fastest growing security alarm companies in the nation [with] regional offices in Baltimore-Washington, D.C.” The defendant’s most recent annual report, moreover, represents that the defendant Crime Control maintains a regional center with 113 employees in the Washington, D.C. area. In addition, the defendant’s advertisements under the name Crime Control in trade magazines indicate that the defendant has a regional operation in the Washington, D.C. area. The defendant’s stock has been advertised in The Washington Post, Baltimore Evening Sun, and Wall Street Journal under the name Crime Control.

The plaintiff has documented the confusion created by the defendant’s use of the name. Instances of confusion include confusion of the two companies by an individual then contemplating installation of one of plaintiff’s security systems. Confusion has occurred on the parts of the City of Baltimore officials responsible for soliciting bids and creditors of defendant’s who have refused to extend credit to plaintiff because of defendant’s poor credit rating. The plaintiff has put in affidavits and other documentation of confusion among other potential customers and suppliers.

DISCUSSION

Plaintiff invokes the Lanham Act to enjoin the defendant’s use of the plaintiff’s trademark in the plaintiff’s area of operation. The case is now on motion for preliminary injunction, thus presently governed by the standards enunciated in Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921 (D.C.Cir.1958). Under Virginia Petroleum Jobbers, the plaintiff must show that it is likely to succeed on the merits, that it would be irreparably injured if no injunction were granted, that the harm issuance of the preliminary injunction might cause the defendant would not outweigh any benefit to the plaintiff, and that the public interest would be served by its issuance. Id. at 925.

Irreparable Injury

The plaintiff has shown that it is likely to suffer irreparable injury pending trial on the merits as required by Virginia Petroleum Jobbers. As discussed above, the plaintiff has documented to the Court’s satisfaction repeated instances in which customers, suppliers and others have confused the two companies. Such confusion supports a finding of irreparable injury. See Maidenform, Inc. v. Munsingwear, Inc., 195 USPQ 297, 302 (S.D.N.Y.1977); McLeod v. Hosmer-Dorrance, Inc., 192 USPQ 683, 686 (N.D.Cal.1976); Elcon Mfg. Co. v. Elcon Mfg. Co., 132 F.Supp. 769, 771 (E.D.N.Y.1955). Where confusion is demonstrated and is likely to continue, irreparable injury to good will and loss of trade are likely. See Telfal, S.A. v. Products International Co., 186 USPQ 545, 548 (D.N.J.1975), aff'd, 529 F.2d 495 (3d Cir. 1976); Diagnostics & Designs, Inc. v. Waverly Beauty Products, Inc., 185 USPQ 513, 514 (M.D.Cal.1973); George Washington Mint, Inc. v. Washington Mint, Inc., 349 F.Supp. 255 (S.D.N.Y.1972). Where the marks, as here, are identical, the likelihood of continued confusion is clear and this satisfies the irreparable injury requirement. See P. Daussa Corp. v. Sutton Cosmetics (P.R.), Inc., 462 F.2d 134, 136 (2d Cir.1972); McLeod v. Hosmer-Dorrance, Inc., 192 USPQ at 685.

Likelihood of Success

To obtain a preliminary injunction, the plaintiff must demonstrate that it is likely to succeed in the trial on the merits. Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d at 925. Because the plaintiff is the undisputed owner of the registered trademark, the likelihood of the plaintiff’s succeeding on the merits of the case is strong. See Pic Design Corp. v. Bearings Specialty Co., 436 F.2d 804, 807 (1st Cir. 1971); Scientific Applications, Inc. v. Energy Conservation Corp., 436 F.Supp. 354, 361 (N.D.Ga.1977); Rubber Specialty, Inc. v. Sneaker Circus, Inc., 195 USPQ 798, 801 (S.D.Fla.1977).

The question of whether the plaintiff is likely to prevail on the merits of its Lanham Act claim also turns on whether the buying public is likely to believe that defendant’s services come from the same source, or are affiliated with the trademark owner. Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 639 (D.C.Cir.1982). Where the marks are identical and the record contains evidence showing the businesses are so related that they are likely to be confused or have actually been confused, then success on the merits is likely. See id. at 639-40.

Balancing the Equities

The Court also finds that balancing the respective hardship that would be caused to the defendant by the Court’s granting the injunction against the hardship that would be caused by the Court’s denial of the injunction points to the granting of the injunction as the most equitable course of action. The defendant is a large and expanding nationwide company newly arrived in this area. The plaintiff is an older, smaller company, strictly local in operations. Requiring the defendant to refrain from all use of the Crime Control name in this area would undoubtedly result in some inconvenience and expense to the defendant. By contrast, however, permitting the defendant to go on using the Crime Control name pending a trial on the merits is likely to cause substantial damage to the plaintiff and could actually place the continued existence of the corporate plaintiff in jeopardy. A balancing of the equities thus weighs in favor of the injunction.

Public Policy

The Court must also consider the interests of third parties in deciding a motion for preliminary injunction. Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d at 925. The buying public has an interest in differentiating among the companies offering security systems. The public has a right not to be deceived or confused. See Corning Glass Works v. Jeannette Glass Co., 308 F.Supp. 1321 (S.D.N.Y.), aff'd, 432 F.2d 784 (2d Cir.1970). The public interest thus lends weight to the plaintiff's position.

For the foregoing reasons the Court has determined that this is an appropriate ease for the issuance of a preliminary injunction.

ORDER GRANTING PRELIMINARY INJUNCTION

Upon consideration of the plaintiff’s motion for preliminary injunction, the defendant’s opposition thereto, the memoranda submitted by the parties and the oral arguments of the parties in open Court, it is by the Court this 12th day of April, 1984,

ORDERED that the plaintiff’s motion for preliminary injunction be, and hereby is, granted; and it is further

ORDERED that the defendant Crime Control, Inc. (an Indiana corporation) shall make no use nor cause use to be made by its agents, servants, employees, or any other person in active concert and participation with it of the name Crime Control in Washington, D.C., Maryland or Virginia.

      . The fact that a defendant alleges to have ceased the infringing activities does not preclude issuance of a preliminary injunction. United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952); United Farm Workers Nat. Union v. Sloan’s Supermarkets, Inc., 352 F.Supp. 1025, 1029 (S.D.N.Y.1972).

      . It is noted that this injunction will simply preserve the status quo. This is to say it will maintain the state of affairs that existed before the defendant began using the plaintiffs trademark in this area. See Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963); Westinghouse Electric Corp. v. Free Sewing Machine Co., 256 F.2d 806, 808 (7th Cir. 1958).