author: JUNE L. GREEN, District Judge.

text:
    CITIES SERVICE COMPANY, Plaintiff, v. FEDERAL TRADE COMMISSION, Defendant. GULF OIL CORPORATION, Plaintiff, v. FEDERAL TRADE COMMISSION, Defendant.
    Civ. A. Nos. 83-812, 83-888.
    United States District Court, District of Columbia.
    July 19, 1984.

      Paul A. Lenzini, Chapman, Duff and Paul, Washington, D.C., John W. Castles 3d, David H. Marks, James R. Eiszner, Jr., Lord, Day & Lord, New York City, for plaintiffs.
    Robert E. Eaton, Jr., Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION

JUNE L. GREEN, District Judge.

Before the Court are two related Freedom of Information Act (“FOIA”) cases. Plaintiffs Cities Service Company (“Cities Service”) in Civil Action No. 83-812, and Gulf Oil Corporation (“Gulf”) in Civil Action No. 83-888, seek exactly the same documents withheld by defendant Federal Trade Commission (“FTC” or “Commission”). Plaintiffs filed joint memoranda in the related actions and FTC also filed joint memoranda. Accordingly, the Court shall address these actions jointly.

Presently, these actions are before the Court on defendant’s motion for summary judgment, plaintiffs’ opposition thereto, defendant’s supplemental memorandum in support of its motion for summary judgment, defendant’s affidavit and index of documents, plaintiffs’ statement of objections to defendant’s affidavit and index of documents, defendant’s response to plaintiffs’ objections to defendant’s affidavit and index of documents, and the entire record herein. The Court has conducted an in camera review of the documents at issue.

For the reasons outlined below, the Court grants defendant’s motion for summary judgment.

Statement of Facts

Plaintiffs Gulf and Cities Service seek access to twenty-nine documents relating to a proposed acquisition of Cities Service by Gulf. A brief review of the facts which led to the actual creation of these documents is essential in order for the Court to fully explain the basis for its decision.

On June 17, 1982, plaintiffs filed pre-merger notification reports with the Commission and the Department of Justice. Upon receiving this notification, the Commission began an investigation of the proposed merger between Gulf and Cities Service to determine whether such a merger would violate section 7 of the Clayton Act, 15 U.S.C. § 18, or section 5 of the FTC Act, 15 U.S.C. § 45, and to determine whether it should file suit to enjoin the proposed merger. The investigation and subsequent litigation continued until August 17, 1982, when Gulf formally withdrew its pre-merger notification filing with the Commission.

Between the time Gulf and Cities Service filed their pre-merger notification reports and the time Gulf withdrew its tender offer, various commissioners, members of their staffs, the Director of the Bureau of Competition, and Commission attorneys and economists assigned to the matter met with representatives of Gulf and Cities Service to evaluate the need for the Commission to take legal action and to discuss the possibility of settlement.

On July 28, 1982, the Commission met to consider its attorneys’ and economists’ recommendations concerning the possibility of pursuing legal action to enjoin plaintiffs from conducting the merger. It was at this meeting that the Commission directed its attorneys to seek a temporary restraining order and a preliminary injunction to enjoin Gulf from consummating the proposed acquisition of Cities Service stock. An action was filed the following day in the United States District Court for the District of Columbia and the Honorable Charles A. Richey granted the Commission’s request for a temporary restraining order. See FTC v. Gulf Oil Corp., No. 82-2131 (D.D.C. July 29,1982) (order granting temporary restraining order).

On August 6, 1982, Gulf publicly announced that it was withdrawing its tender offer for Cities Service stock. Finally, on August 17, 1982, Gulf formally withdrew the pre-merger notification filing and the injunction action was dismissed when the merger plans were terminated.

Shortly after the termination of the Commission’s preliminary injunction action against Gulf and Cities Service, both plaintiffs filed with the Commission a request under the FOIA for access to all documents in the Commission’s possession which involved the proposed acquisition of Cities Service by Gulf.

When the Commission received these requests, it immediately began its search of documents responsive to these requests. After reviewing the documents, the Office of the Secretary (“Secretary”) granted in part and denied in part the parties’ requests. This decision of the Secretary was appealed to the Commission’s General Counsel.

On February 4, 1983, after review of all responsive documents, the General Counsel responded to the parties’ appeal of the Secretary’s partial denial of their requests. The General Counsel granted the parties access to over 3,200 pages of documents responsive to their requests. The General Counsel denied access to the remaining documents based on FOIA Exemptions. 3, 4, and 5. 5 U.S.C. § 552(b)(3), (4), (5). It was from this final agency decision that plaintiffs have filed their suits.

The parties, since the time of suit, have narrowed the number of documents at issue to twenty-nine. Plaintiffs have further indicated that the only documents or portions of documents the withholding of which they wish to contest, are those withheld by the Commission under Exemption 5 of FOIA (“Exemption 5”). 5 U.S.C. § 552(b)(5). The Commission has released all portions of the documents which it believes are not subject to the FOIA exemptions.

The documents at issue, except for Document No. 20 and parts of Document No. 2, relate to meetings or telephone conversations with representatives of Gulf and/or Cities Service and the Commission staff. The remaining two documents relate to meetings among members of the Commission staff. All the documents were created between the time plaintiffs filed their pre-merger notification reports and the tim'e Gulf withdrew its tender offer.

The Commission has filed a motion for summary judgment, as well as an affidavit and index of documents withheld. In addition, the Commission has submitted to the Court for in camera review “unexpurgated copies” of the twenty-nine documents at issue. The Court has reviewed these documents carefully, as well as all of the material that has been submitted in this action. Defendant’s motion for summary judgment has been opposed jointly by plaintiffs.

Conclusions of Law

In order for the Court to grant a motion for summary judgment, there can be no genuine issue of material fact. See Fed.R.Civ.P. 56(e). For the Government to be entitled to a grant of summary judgment in a FOIA action, it must demonstrate that “no substantial and material facts are in dispute and that [it] is entitled to judgment as a matter of law.” Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C.Cir.1979) (quoting National Cable Television Association v. FCC, 479 F.2d 183, 186 (D.C.Cir.1973)). To prevail in a FOIA action “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.” National Cable Television Association v. FCC, 479 F.2d at 186. If the agency withholds disclosure of certain requested documents it “must show by detailed and specific justification” the basis for the withholding. Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d 242, 259 (D.C.Cir.1977). It is plain that “ ‘conclusory generalized allegations of exceptions’ are unacceptable....” Founding Church of Scientology v. National Security Agency, 610 F.2d at 830 (quoting 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)). The Government must indicate by “detailed affidavit that the documents are clearly exempt from disclosure.” Id. (emphasis in original) (quoting S.Rep. No. 1200 (93d Cong., 2d Sess. 9 (1974) U.S.Code Cong. & Admin. News 1974, pp. 6285, 6287).

Plaintiffs argue that summary judgment is not appropriate in this case at this time because the Commission has failed to meet its burden by adequately explaining in its affidavit and index its justification for withholding the documents requested. After reviewing the affidavit and index, the Court finds that plaintiffs’ argument is without merit. The affidavit and index are substantailly detailed. They provide the Court a clear, thorough, and specific description of the characteristics of each document, as well as a detailed reason why the Commission believes that each document, or withheld portion of each document, should be exempt. E.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C.Cir.1980); Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d at 261; Vaughn v. Rosen, 484 F.2d at 827.

The Court notes that the index provided by the Commission, standing alone, would have provided it with enough material to determine whether the claim of exemptions were justified or not. In order to be certain, however, that the Commission has provided plaintiffs and the Court with the proper justification for withholding the documents through the affidavits and index, and further to address any objection plaintiffs have concerning the thoroughness or completeness of the index or affidavit, the Court also conducted an in camera review of these documents. This review confirmed the conclusion that these affidavits did, in fact, comply with the requirements outlined in Coastal States, Mead Data Central, and Vaughn.

Each of the documents which defendant has withheld is claimed to be exempt from disclosure under Exemption 5 of the FOIA. 5 U.S.C. § 552(b)(5). Pursuant to Exemption 5, an agency may withhold “intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Id. “From the language of this exemption, it is clear that Congress has attempted to incorporate into the FOIA certain principles of civil discovery law.” Jordan v. Department of Justice, 591 F.2d 753, 772 (D.C.Cir.1978) (en banc). The exemption is designed “to exempt [from disclosure] those documents, and only those documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975), quoted in, Jordan v. Department of Justice, 591 F.2d at 772; see also FTC v. Grolier, Inc., 462 U.S. 19, 103 S.Ct. 2209, 2213-15, 76 L.Ed.2d 387 (1983).

Defendant asserts that all twenty-nine of the documents withheld constitute attorney work product under Exemption 5. In addition, defendant asserts that twenty-two documents, or portions thereof, are claimed to be protected by the deliberative-process privilege of Exemption 5. The Court finds that these documents are protected under the asserted privileges.

I. Attorney Work-Product Privilege

In addressing defendant's attorney work-product claim of privilege, the Court must determine whether the documents withheld are “routinely” or “normally” available to a party in litigation. FTC v. Grolier, Inc., 103 S.Ct. at 2213-15. The Court notes that all of the documents at issue here were prepared by various staff attorneys and officials at the Commission after Gulf and Cities Service had filed their pre-merger notification reports. Once those reports were filed, an investigation was initiated by the Commission to determine whether such a merger was lawful under the relevant antitrust laws. The notes at issue were mostly those which related to meetings or telephone conversations with representatives of Gulf and/or Cities Service. Two documents are notes of private meetings among members of the Commission staff. All the documents at issue were prepared in preparation for litigation or settlement.

A.

Under the work-product privilege of Exemption 5, only those documents prepared by an attorney or his agent in anticipation of a particular litigation or on the basis of some articulable claim which is likely to lead to litigation may be withheld. Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 864-66; Jordan v. Department of Justice, 591 F.2d at 774; Kent Corp. v. N.L.R.B., 530 F.2d 612, 623 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976).

Plaintiffs have argued that because some of the documents at issue do not relate to preparation for litigation but merely involve discussions of settlement, they may not be exempt from disclosure under the work-product privilege of Exemption 5.

This argument is without merit. Certainly, any attorney’s notes or working papers which relate to litigation decisions or to possible settlement discussions pertaining to foreseeable litigation are protected under the attorney work-product privilege. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 865 (so long as “litigation was fairly foreseeable at time memorandum was prepared” exception applies); Kent Corp. v. N.L.R.B., 530 F.2d at 623 (materials qualify as work product if prospect of litigation identifiable when materials are prepared); Herbert v. Lando, 73 F.R.D. 387, 402 (S.D.N.Y.1977), rev’d on other grounds, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (communications may contain work product even if they are prepared in an effort to avoid possible litigation). In his concurring opinion in Grolier, Justice Brennan noted that:

It would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency_ He would get the benefit of the agency’s legal and factual research and reasoning, enabling him to litigate “on wits borrowed from the adversary.” ... Worse yet, he could gain insight into the agency’s general strategic and tactical approach to deciding when suits are brought, how they are conducted, and on what terms they may be settled.... Any litigants who face litigation of a commonly recurring type ... have an acute interest in keeping private the manner in which they conduct and settle recurring legal disputes.

FTC v. Grolier, Inc., 103 S.Ct. at 2216 (Brennan, J., concurring) (citations omitted).

The documents in this case were all prepared “ ‘with an eye towards litigation’ even though they were prepared by a desire to avoid ... a possible suit.” Herbert v. Lando, 73 F.R.D. at 402 (quoting Vilastor-Kent Theatre Corp. v. Brandt, 19 F.R.D. 522 (S.D.N.Y.1956)). From the time plaintiffs filed their pre-merger notification through the time Gulf withdrew that notice, the Commission was poised for the possibility of litigation. The mere fact that some of the notes of discussions relate to possible settlement does not affect the work-product privilege.

Plaintiffs have also argued that many of the notes at issue in this matter actually were not prepared by individuals who were involved with or had responsibility in the Gulf-Cities Service injunction action or settlement. Because they were not so involved, plaintiffs argue, those materials cannot be considered the attorney work product of the injunction action. This claim is factually without support. Each document at issue was prepared in anticipation of litigation. Most of the documents are notes or working papers of either Thomas J. Campbell, Director of the Commission’s Bureau of Competition, or Edward M. Shumsky, Mr. Campbell’s personal assistant and advisor. As Bureau Director, Mr. Campbell “is the official ultimately ‘responsible for enforcing Federal antitrust and trade regulation laws, [and] for investigating alleged law violations, and recommending to the Commission such further action as may be appropriate ... includpng] [necessary legal action].” Declaration of David C. Shonka and Index to Documents, ¶ 18 (“FTC Affidavit”) (quoting 16 C.F.R. § 0.16). Mr. Campbell was also actively involved in the Gulf-Cities Service injunction action. See Defendant’s Response to Plaintiffs’ Statement of Objections to Federal Trade Commission’s Supplemental Index at Exhibits J, K. As Mr. Campbell’s assistant, Mr. Shumsky’s papers would also be subject to the same level of protection as those of Mr. Campbell. The papers produced by both individuals were written either in preparation for litigation or while settlement negotiations were ongoing.

Many of the remaining disputed documents were produced by attorneys who worked directly on the preliminary injunction. These individuals were actively involved with the Gulf-Cities Service injunction action and, therefore, the documents at issue were prepared in anticipation of litigation.

The three remaining documents at issue are the notes and working papers of three of the commissioners’ attorney-advisors. These notes were all created within twenty-four hours of the time the commissioners met and voted in favor of filing an action to enjoin Gulf and Cities Service from consummating their proposed merger. In defendant’s declaration and index, Mr. David C. Shonka states that:

these attorney advisors were responsible for making recommendations to the commissioners regarding litigation decisions and in fact the commissioners and their attorney advisors commonly work closely with the litigation staff in defining the issues to be raised in court litigation to which the Commission is a party.

FTC Affidavit ¶ 24. It is plain to the Court that these remaining documents, as well as all of the documents at issue in this case, were created by those integrally involved in the Gulf-Cities Service injunction action.

B.

Plaintiffs’ main argument is that the Commission has withheld wrongfully material that is purely factual. As plaintiffs note correctly, the work-product principle under Exemption 5 does not include material that is factual in nature. E.g., Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d at 256. Any portion of factual material that is reasonably segregable from the documents must be disclosed and cannot be considered exempt under the privilege. E.g., EPA v. Mink, 410 U.S. 73, 92, 93 S.Ct. 827, 838, 35 L.Ed.2d 119 (1973). Plaintiffs claim that the Commission has interpreted the work-product doctrine too broadly and that the portion of material which the Commission claims to be “impressions” are actually factual summaries and, therefore, are subject to disclosure under the FOIA. They assert that the documents withheld by the Commission merely record meetings and conversations between representatives of the Commission, Gulf and/or Cities Service and, therefore, must be considered largely factual in nature. See Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 735-37 (5th Cir.1977), rev’d on other grounds, 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (witness statements not protected from disclosure).

In response, defendant notes that the materials at issue here are not verbatim transcripts of what was said at various meetings nor are they intended to be a complete factual record. The documents at issue, the Commission claims, merely comprise each author’s own impression of what he believed to be relevant and important issues; they demonstrate a weighing of certain facts and identify what each author considers to be of special relevance and importance to the Commission in its investigation, litigation strategy, or settlement plans.

In support of this claim that the documents here constitute attorney work product, defendant notes that the United States Court of Appeals for the District of Columbia (“D.C. Circuit”) held in Bristol-Meyers v. FTC, 598 F.2d 18, 29 (D.C.Cir.1978), that contemporary notes taken by an attorney during an interview of witnesses conducted by opposing counsel are protected from disclosure by the work-product doctrine. In so holding, the court noted that although “it cannot be said that the interviews themselves reveal legal theories ... the notes ... would reveal counsel’s ‘mental impressions’ and evaluations of the testimony given.” Id. (Emphasis in original). Defendant argues that just as the notes of interviews were protected under the attorney work-product privilege in Bristol-1Meyers, so also must the notes of meetings and conversations be protected in the present case.

The Commission claims correctly that although its meetings with representatives of the oil companies and an actual record of what transpired would not be considered work product, the weighing and sifting of relevant facts as highlighted in each author’s notes surely do constitute work product. To provide an opponent the opportunity to examine notes taken by an attorney during negotiation or settlement discussions would unnecessarily impinge upon the “zone of privacy” which an attorney has “within which to think, plan, weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories." Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 864. Accord Hickman v. Taylor, 329 U.S. 495, 511-513, 67 S.Ct. 385, 393-394, 91 L.Ed. 451 (1947).

If one examines the notes of various authors that attended the same meeting, the argument that these notes are work product has merit. Document Nos. 5, 6, and 7, for example, are the working papers of Mr. Shumsky, Mr. James M. Giffin, attorney in the Bureau of Competition, and Mr. David C. Shonka, attorney in the General Counsel’s Office at the Commission, respectively. These papers all relate to a meeting which took place on July 23, 1982, among themselves and the oil company representatives. Although these individuals attended the same meeting, the material that is highlighted in each of these notes is entirely different. The differences in these notes actually reflect each author’s own impression of what facts were relevant to the Commission’s investigation and litigation strategy. The notes demonstrate a weighing and analysis of matters which might affect directly the Commission’s litigation strategy in the future.

In Mervin v. FTC, 591 F.2d 821, 826 (D.C.Cir.1978), the D.C. Circuit noted that “[a]n important part of what is protected by the privilege for attorney work-product is the attorney’s consideration and weighing of facts.... Because of this, even factual material segregated from attorney work-product is likely to reveal some of the attorney’s tactical and strategic thoughts.” The court concluded that “material which might disclose an attorney’s appraisal of factual evidence is attorney work-product excepted from disclosure by exemption 5.” Id. (citing Kent Corp. v. N.L.R.B., 530 F.2d at 624; Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1137-38 (4th Cir.1977)); see also Mobil Oil Corp. v. FTC, 430 F.Supp. 849, 859 (S.D.N.Y.1977) (attorney work-product privilege protects factual matter contained in interviewer’s reports; selection of salient facts reflect attorney’s work); United States v. J.B. Williams Co., 402 F.Supp. 796, 801 (S.D.N.Y.1975) (attorney work-product privilege protects personal recollection notes of what transpired at FTC compliance proceeding; attorney will always sift relevant from irrelevant facts).

Upon examination of the documents in this case, the Court concludes that these materials do constitute the actual work product of attorneys at the Commission. Although the documents in large part consist of factual materials, they also reflect the attorney’s own mental impression of what he believes to be significant to the Commission in its litigation/settlement strategy. Because these documents must be considered those that would not be “routinely” or “normally” available to an opponent in a litigation setting, FTC v. Grolier, Inc., 103 S.Ct. at 2213-15, the Court cannot and will not interfere with that work product. Therefore, the Court finds that the Commission was correct in withholding the twenty-nine documents pursuant to Exemption 5.

II. Deliberative-Process Privilege

In addition to claiming that all twenty-nine documents are exempt under the attorney work-product privilege of Exemption 5, defendant claims that twenty-two of the documents also are exempt under the predecisional deliberative-process privilege of Exemption 5 of the FOIA. The purpose of the deliberative-process privilege is to prevent injury to the quality of agency decision making by fostering “frank discussion of legal or policy matters.” NLRB v. Sears Roebuck & Co., 421 U.S. at 150, 95 S.Ct. at 1516 (quoting from S.Rep. No. 813, p. 9). For a discussion of the policy rationale behind the Exemption 5 protection of the deliberation process, see Jordan v. Department of Justice, 591 F.2d at 772.

In Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, the D.C. Circuit explained the types of documents protected by the deliberative-process privilege under Exemption 5:

The exemption ... covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency position that which is as yet only a personal position. To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.... We also ask whether the document is recommen-datory in nature or is a draft of what will become a final document, and whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another.

Id. at 866.

Defendant has stated that the documents withheld pursuant to the deliberative-process privilege are exempt from disclosure because the documents either constitute notes of meetings with oil company representatives taken by Commission staff members whose responsibilities are to provide advice to the Commissioners or the Director of the Commission’s Bureau of Competition on settlement efforts and litigation strategy, or they constitute notes taken by staff attorneys responsible for the Gulf-Cities Service injunction action whose notes were taken to help the authors evaluate the need for legal action or the possibility of settlement. The Commission states that all of the documents withheld under the deliberative process highlight each author’s concerns as to various issues relating to the Gulf-Cities Service injunction action. In addition, the Commission states that the notes reflect each author’s reactions to comments made by individuals at the meetings and further reflect the author’s insights into the kinds of arguments which might be advanced at trial. The notes are predecisional, defendant claims, because they antedate any decision that was made by the Commission. Therefore, because these documents are both predecisional and deliberative, defendant argues that they are protected under the deliberative-process privilege.

Plaintiffs argue that the material withheld by the Commission under the deliberative-process principle largely consists of factual material relating to meetings with oil company representatives and, therefore, may not be exempt from disclosure. They note that purely factual material which is severable from and does not compromise the predecisional deliberative-process portion of a document is not exempt from disclosure under Exemption 5. EPA v. Mink, 410 U.S. at 91, 93 S.Ct. at 837. Plaintiffs further argue that because the notes are not of internal agency discussions but actually of negotiations with representatives from Gulf and Cities Service, they cannot be considered deliberative-process material.

Plaintiffs’ argument is without merit. Just as these documents were exempt under the work-product doctrine because the selection of relevant facts reflected each author’s weighing and evaluation of matters considered significant, so they must also be exempt under the predecisional deliberative-process privilege. The documents here do not solely consist of factual material. They are “inextricably intertwined” with the reasoning and conclusions that form the basis of the author’s recommendations and advice to the Commission. EPA v. Mink, 410 U.S. at 92, 93 S.Ct. at 838 (quoting Mink v. EPA, 464 F.2d 742, 746 (D.C.Cir.1972)); see also Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C.Cir.1980) (“factual segments are protected from disclosure as not being purely factual if the manner of selecting and presenting those facts would reveal the deliberative process”). As the D.C. Circuit in Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d at 256, noted: “Exemption five is intended to protect the deliberative process of government and not just deliberative material_ In some circumstances, the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted by [Exemption 5].” Id. See also Montrose Chemical Corp. v. Train, 491 F.2d 63, 67-71 (D.C.Cir.1974) (evidence summaries prepared by staff, used to assist agency head charged with making decision, exempt under Exemption 5). These documents, therefore, need not be disclosed.

The cases cited by plaintiffs do not affect this conclusion. For example, plaintiffs reliance on Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931 (D.C.Cir.1982), is misplaced. In that case, the Court indicated that the report at issue “was prepared only to inform the Attorney General of facts which he in turn would make available to members of Congress.” Id. at 936. The facts in Playboy Enterprises were not prepared to become an integral part of the decision-making process, but were prepared merely for informational purposes. In contrast, the material in the present case was created for the purpose of helping its authors and/or the Commission make decisions. For similar reasons, the Court also finds plaintiffs’ reliance on ITT World Communications, Inc. v. FCC, 699 F.2d 1219 (D.C.Cir.1983), rev’d on other grounds, 446 U.S. 463, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984), to be without merit. The Commission rightly withheld the documents at issue here because disclosure of these debatable factual materials would surely impinge upon the Commission’s pre-decisional deliberative-process privilege.

Conclusion

The Court finds that the twenty-nine documents and portions of documents at issue in this case were withheld properly, pursuant to the FOIA Exemption 5, 5 U.S.C. § 552(b)(5).

Accordingly, the Court grants defendant’s motion for summary judgment.

      . Plaintiffs have argued vigorously that defendant’s motion for summary judgment was filed prematurely because the Court had indicated that it would review the documents at issue, in camera, with defendant’s affidavit and index, before considering summary judgment motions. Through an apparent misunderstanding, defendant filed its motion for summary judgment simultaneously with its filing of the affidavit and index. In order to resolve any difficulties plaintiffs may have and before considering defendant's summary judgment motion, the Court requested defendant to submit the documents for in camera inspection. Those documents were provided to the Court on June 20, 1984.

      . In In Re: Gulf Oil Corporation/Cities Service Company Tender Offer Litigation, Mise. No. 84-2, F.S. 82-482 (D.D.C. May 31, 1984), the Honorable Stanley S. Harris of the United States District Court for the District of Columbia entered an order denying plaintiffs’ motion to compel the Commission, pursuant to discovery requests, to produce the same documents that are the subject of this action.

      . Those documents include Document Nos. 5, 10, 12, 16-19, 21-23, and 25-29.

      . These documents include Document Nos. 1, 2, 3, 4, 6, 7, 8, 9, 11, 20, and 24.

      .These documents include Document Nos. 13, 14, and 15.

      . These documents include Document Nos. 1, 5, 6, 9, 10, 12-23, 25-29.


source: Caselaw Access Project

author: FRANK A. KAUFMAN, Chief Judge.

license: Public Domain

text:
    Sylvester J. VAUGHNS, Jr., etc., et al. v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY, et al. NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al. v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY, et al.
    Civ. Nos. 72-325-K, K-81-2597.
    United States District Court, D. Maryland.
    Jan. 8, 1985.
    Supplemental Memorandum And Order June 24, 1985.
    Opinion Jan. 8, 1986.
    Richard V. Falcon, Baltimore, Maryland, Joseph M. Hassett, George H. Memick, III, David S. Tatel, Elliot M. Mincberg, John C. Keeney, Jr., Steven B. Rotman, Carol A. Melton, Nell Hoffman, Patricia A. Brannan and Hogan and Hartson, Washington, D.C., Thomas I. Atkins, Michael Sussman and Teresa Demchak, NAACP Special Contribution Fund, Brooklyn Heights, N.Y., William L. Robinson and Norman J. Chachkin, Lawyers’ Committee for Civil Rights Under Law, Washington, D.C., for Plaintiffs.
    Paul M. Nussbaum and Andrew W. Nussbaum, Mt. Rainier, Md., and George D. Solter, Alfred L. Scanlan, Jr. and Gerson B. Mehlman, Baltimore, Md., for Defendants.
   MEMORANDUM AND ORDER

FRANK A. KAUFMAN, Chief Judge.

(1) On November 9, 1984, this Court in an opinion filed that date, awarded to plaintiff fees of $355,550.00 and expenses of $17,392.00, making a total award for fees and expenses of $372,942.00. Subsequently, the parties presented, as requested by the Court, their views as to a schedule of payment of the said $372,942.00 and the payment of interest therein.

(2) In accordance with this Court’s said November 9, 1984 opinion, judgment is hereby entered for plaintiffs against defendants in the amount of $372,942.00.

(3) Interest will be at the rate provided in 28 U.S.C. § 1961(a), and not at the rate of 10% or any other fixed rate. This Court’s November 9, 1984 opinion (see 598 F.Supp. 1262, 1290) is accordingly so altered.

(4) Whether or not 28 U.S.C. § 1961(a) makes mandatory the allowance of interest on an award of attorney’s fees pursuant to 42 U.S.C. § 1988, see Preston v. Thompson, 565 F.Supp. 294 (N.D.Ill.1983), it is particularly appropriate that interest be so allowed in this case in view of the deferred payment schedule set forth infra.

(5) Appropriate deferment of payment of fees and expenses is, in a case of this type, within the discretionary authority of this Court. Hutto v. Finney, 437 U.S. 678, 692 n. 18, 98 S.Ct. 2565, 2574 n. 18, 57 L.Ed.2d 522 (1978); Stanwood v. Green, 559 F.Supp. 195, 201 (D.Or.1983). Herein, plaintiffs have requested that the $372,-942.00 be paid as follows:

$25,000.00 on January 10, 1985
$25,000.00 on April 10, 1985
Balance on July 1, 1985.

On the other hand, defendants have requested that the $372,942.00 be paid on a different schedule, namely—

$25,000.00 on January 10, 1985
$25,000.00 on April 10, 1985
$100,000.00 on July 10, 1985
$100,000.00 on July 10, 1986
Balance on July 10, 1987.

After consideration, this Court hereby establishes the following schedule for payment of the $372,942.00:

$25,000.00 on February 10, 1985
$25,000.00 on April 10, 1985
$161,471.00 on July 10, 1985
$161,471.00 on July 10, 1986.

That schedule will enable defendants to spread most of the payment of the $372,-942.00 over the School Board’s fiscal years commencing July 1, 1985 and July 1, 1986. Thus, the said schedule takes into account the budgetary problems which defendants have stressed. However, as plaintiffs have suggested, there is no indication in the record that counsel for defendants have been asked by defendants to await payment of fees and expenses on a delayed schedule. There would, on balance, seem little reason to ask counsel for plaintiffs to wait for as long in the future as July, 1987 for payment in full. On the other hand, delay of payment of the final $161,471.00 until the commencement of the School Board’s fiscal year 1986 is not unduly unfair to counsel for plaintiffs in view of the provision of interest.

(6) The question arises as to the date as of which interest shall commence to run on the judgment of $372,942.00. 28 U.S.C. § 1961(a) provides that “interest shall be calculated from the date of the entry of the judgment.” “Ordinarily interest on a judgment runs from the date of its entry but there have been exceptional cases in which interest has been allowed from the date when the judgment should have been entered if its actual entry was delayed. 11 C. Wright and A. Miller, Federal Practice and Procedure § 2785 at 18, 19 (footnote omitted). See also Lew Wenzel & Co., etc. v. London Litho Supply Co., Inc., 563 F.2d 1367 (9th Cir.1977); Perkins v. Standard Oil Company of California, 487 F.2d 672 (9th Cir.1973); Stanwood v. Green, 559 F.Supp. supra at 204; see generally Note, Interest on Judgments in the Federal Courts, 64 Yale L.J. 1019 (1955); Note, Interest on Verdicts and Judgments in the State and Federal Courts, 38 Notre Dame Law 58 (1962). There would appear to be little or no reason why the Congress would have desired to deny to a federal district court in connection with the payment of interest on an award of fees and expenses pursuant to 42 U.S.C. § 1988 — a remedial section of a remedial statute — the discretion to cause interest to run on the date the judgment would have been entered but for delay. However, in the within case, there has been no delay by the parties or the Court in the entry of the judgment of $372,942.00. In this Court’s November 9, 1984 opinion, it required certain further submissions by the parties by November 23, 1984, with regard to the scheduling of payment of the $372,942.00 and the allowance of interest in connection therewith, so that this Court could enter a complete judgment order with regard to such principal and interest payments. Some of those submissions were not, in fact, received by this Court until December 19, 1984. Accordingly, interest will commence on the date hereof, namely, January 8, 1985, which is not only the date of entry of the judgment for $372,942.00, but is a date reasonably close to the first date upon which this Court could have completed its own work in connection with the issues involved in the within Memorandum and Order.

(7) All interest, with regard to the total amount of the within judgment unpaid from time to time, due and owing on each payment date upon which principal amounts of the within entered judgment are to be paid, namely on February 10, 1985; April 10, 1985; July 10, 1985 and July 10,1986, shall be paid in full and up to date on each such payment date.

SUPPLEMENTAL MEMORANDUM AND ORDER

(1) For the reasons set forth during a hearing held on June 7, 1985, which said hearing, in toto, was held on the record in open Court, defendants’ motion for a stay of consideration of plaintiffs’ supplemental motion for attorneys’ fees and expenses is hereby denied.

(2) For the reasons set forth on the record during the said June 7, 1985 hearing, the motion of the City of Bowie for leave to file a brief amicus curiae is hereby granted.

(3) The amicus curiae status of several petitioners is recognized. However, for the reasons set forth on the record during the said June 7, 1985 hearing, while this Court will fully consider all briefs and other written submissions filed by or on behalf of amici curiae, this Court may not be able to await such filings before moving ahead in these cases.

(4)In its opinion of June 20, 1983, this Court found that “the Prince George’s County school system has not intentionally discriminated and does not presently intentionally discriminate against black students in TAG placement, and in fact has taken and is taking affirmative steps to remedy the problem of underrepresentation of black students in the TAG program.” Vaughns v. Board of Education of Prince George’s County, 574 F.Supp. 1280, 1307 (D.Md 1983) (Kaufman, C.J.). Similarly, this Court found that “the evidence requires the conclusion that as to special education, there are no vestiges of past segregation, no intentional discrimination, and no violation of any order of this court.” Id. at 1302. In making both findings, this Court placed the burden of proof upon plaintiffs.

In its opinion of March 28, 1985, the United States Court of Appeals for the Fourth Circuit held “that plaintiffs were entitled to a presumption that current placement disparities were causally related to prior segregation and that the burden of proving otherwise rested on defendants.” Vaughns v. Board of Education of Prince George’s County, 758 F.2d 983, 991 (4th Cir.1985) (Winter, C.J.). Accordingly, the Fourth Circuit reversed and remanded the within cases solely as to that aspect of the within litigation, for proceedings in this Court not inconsistent with its opinion.

Upon consideration of that aspect of these cases, this Court finds, and holds for the reasons set forth during the said June 7, 1985 hearing that during the trial proceedings in the within litigation which preceded the Fourth Circuit’s said opinion, defendants have shown by a preponderance of the evidence that as to both the special education and TAG placement programs there are no vestiges of past segregation, no intentional discrimination, and no violation of any order of this Court.

OPINION

The instant fee dispute, involving services rendered by counsel for plaintiffs after the period for which such counsel obtained compensation in Vaughns v. Board of Education of Prince George’s County, 598 F.Supp. 1262 (D.Md.1984), aff'd, 770 F.2d 1244 (4th Cir.1985), is the latest chapter in a case which began in 1972. The history of this litigation is reviewed in this court’s said 1984 opinion and will not be repeated herein. Nor is it necessary to review herein the legal principles applicable to a petition for fees and expenses of the type involved herein since those principles are set forth in this court’s said 1984 opinion and the Fourth Circuit’s 1985 affirmance. In its 1984 opinion, this court dealt with fee and expense issues relating to trial time. Herein, in parts I-V, inclusive, this court addresses plaintiffs’ quests concerning fees and expenses in connection with the appeal of defendants, and the cross-appeal of plaintiffs, to the Fourth Circuit from this court’s 1983 opinion. In part VI, plaintiffs seek fees and expenses relating to defendants’ appeal from this court’s 1984 opinion and other services performed after this court’s 1984 opinion was filed.

I. INTENTIONAL DISCRIMINATION

On cross-appeal to the Fourth Circuit following this court’s opinion in Vaughns v. Board of Education of Prince George’s County, 574 F.Supp. 1280 (D.Md.1983), aff'd in part, rev’d and remanded in part, 758 F.2d 983 (4th Cir.1985), plaintiffs contended that this court had erred in not holding that certain 1980 busing changes constituted intentional discrimination. The Fourth Circuit rejected that contention. The question presented herein is whether time spent by plaintiffs’ counsel in connection with that unsuccessful intent argument is compensable under § 1988. A very similar issue has been previously presented with regard to time spent in trial prior to this court’s aformentioned 1983 opinion and was decided with respect to such trial work in this court’s said 1984 opinion. In that 1984 opinion, this court held that the time spent preparing the intent argument for trial was not fully excludable on the basis of unrelatedness because some of the information supporting the intent claim also supported the lack of unitary status claim. Vaughns, 598 F.Supp. at 1273. However, this court deleted time devoted solely to intent and further reduced the award to reflect time spent on unsuccessful, unrelated issues which were not easily isolated in the records of plaintiffs’ counsel, Hogan and Hartson. Id. at 1274-77. In so doing, this Court used, as a guideline, a 27 percent reduction which was derived from the percentage of trial transcript pages devoted to unsuccessful, unrelated claims. Id. at 1276.

In the instant dispute, the only item of presently claimed compensable work which appears to be devoted solely to the intent issue is found in the declaration of Patricia A. Brannan: “12/1/83 confer with J. Has-sett and L. Sturgill re intent issue on appeal .25 (hours).” Declaration of Patricia A. Brannan, Attachment A at 1. A quarter of an hour will thus be deducted from the time of each of these three attorneys to reflect that conference.

Plaintiffs state that of the 79 pages of the briefs filed by plaintiffs with the Fourth Circuit following this court’s 1983 opinion (40 in the opening brief, 27 in the reply brief, and 12 in an appendix), only 7 addressed intent. Reply Memorandum at 3 n. 1. The total pages of briefs devoted by plaintiffs to arguing intent compared to the total pages of argument in those briefs, excluding pages dealing with statements of the issues and of the facts, was 50 to 7. For want of a better approach, the 7 to 50 ratio will be used and 14 percent of plaintiffs total time spent on appeal will be determined to be time spent on the intent issue on appeal plus an additional % of an hour as indicated supra.

In applying the 27 percent guideline regarding unsuccessful issues in its 1984 opinion, this court considered the declarations of each attorney, paralegal, and clerk to determine their actual involvement with unsuccessful issues and ultimately assigned deductions of 0 to 32 percent, rather than a flat 27 percent. Vaughns, 598 F.Supp. at 1276-77. Herein, the 14 percent reduction will be applied to anyone whose daily entries consisted primarily of items such as “appeal brief” or “appeal argument,” because the intent issue was an inseparable part of the appeal process. Thus, attorneys Brannan, Cohen, Hassett, Keeney, Sturgill, and Chachkin and paralegals Slowinski and Strausberg will have their total hours reduced by 14 percent. On the other hand, attorneys Abram, Bonaparte, Faraquhar, Hollman, Mincberg, Ta-tel and paralegal McCann and law clerk McDonald worked on issues such as school desegregation plans and the appointment of experts which were separate from the intentional discrimination issue. Therefore, no reduction will be made in their hours.

The adjustments in hours due to time spent on nonprevailing issues are set forth in Appendix A hereto.

II. REASONABLE HOURS Defendants assert that the Hogan and Hartson attorneys simply spent too much time in connection with certain elements of the appeal in 1983. Defendants cite as examples 781.15 hours spent on researching, writing, and arguing the cross-appeals, and 23.75 hours devoted to a resolution passed by the Prince George’s County Board of Education. Opposition Memorandum at 4, 5. From those figures, defendants draw a conclusion of per se unreasonableness. Plaintiffs dispute the second figure and state that defendants point to no specific unreasonable expenditure of time by plaintiffs’ counsel. Reply Memorandum at 3-7. Yet it is almost impossible for defendants to be more specific since many of the time entries of plaintiffs’ counsel are very general, e.g., “drafting appeal brief” or “analysis re appeal issues.”

In its 1984 opinion, this court did not deem 6,000 hours of attorney time in connection with the Vaughns trial unreasonable in its face, but did find specific instances of overstaffing, excessive time spent in certain work and a lack of cooperation among counsel. Vaughns, 598 F.Supp. at 1278-79. To account for the net effect of the same, this court reduced plaintiffs’ request by 10 percent, concluding that “[t]hat is an approximation but it is the best this Court can do.” Id. at 1279. Herein, this court, in a rough justice approach, can do no better. The results of a 10 percent reduction are reflected in Appendix B hereto.

III. THE STAY MOTION

In its 1984 opinion, this court wrote: “Plaintiffs have not asked for any compensation for work done between [the] date [plaintiffs filed their request for attorneys fees, namely, October 11, 1983] and the date of this opinion [11/9/84] with regard to the fee and expense issues. This court’s understanding is that no claim will be made for compensation for such work.” Vaughns, 598 F.Supp. 1266 n. 5. “Plaintiffs do not seek attorneys’ fees for ... time ... spent litigating the merits of plaintiffs’ first request for fees.” Plaintiffs’ Memorandum at 4 n. 3; see also Declaration of Joseph M. Hassett at 5.

The parties disagree over the status of work performed by Hogan and Hartson in opposing defendants’ 1983 motion to stay consideration of the attorneys’ fee petition until the liability appeal was settled. Defendants view that work as excluded by note 5 in this court’s 1984 opinion. Opposition Memorandum at 7. Plaintiffs contend that the stay motion was a delaying tactic which this court rejected and that recovery is fair; and thus, seemingly, argue that note 5 applies only to services relating to merit issues and not to stay issues. Reply Memorandum at 10. But, note 5’s language is broad and exclusive and does not support plaintiffs’ position. Reductions reflecting time spent on the 1983 stay motion are, therefore, set forth in Appendix C.

IV. REASONABLE RATE

In its 1984 opinion, this court set rates for 13 attorneys from Hogan and Hartson and 2 others. Each attorney requested his usual hourly rate and this court made certain adjustments to those rates. The primary factors which this court considered in adjusting the lawyers’ standard rates were the role played in the underlying litigation, the skill displayed therein, and the prior civil rights experience of the attorney. Vaughns, 598 F.Supp. at 1280-83.

The instant dispute involves 12 attorneys, 7 of whom worked on the Vaughns trial and for whom rates were set by this court in its 1984 opinion. See id. at 1282. Hogan and Hartson is requesting increases between 14 to 61 percent for the subsequent work of the 7 attorneys. Opposition Memorandum at 6. Defendants contend that such increases since the November 1984 award are unreasonable and should not be approved. Id. In response, plaintiffs note that the requested higher rates for the said seven attorneys, as well as the rates of the five new attorneys, reflect a general increase in local market rates in the period since the time prior to the filing by this court of its 1983 opinion. Plaintiffs also assert that with regard to certain of the attorneys involved in the appeal, they had gained certain other civil rights experience and that, in any event, they had prior appellate experience. Plaintiffs further contend that lesser experienced attorneys were given less demanding assignments during the appeal period to maximize efficiency. Reply Memorandum at 7-9.

A 14 to 61 percent increase can, of course, not be justified solely on inflationary grounds. In November 1984, this court based its fee award to plaintiffs on then current rates, not the average market rate over the two-year trial span (September 1981 through September 1983) for which plaintiffs sought compensation for trial work. See Vaughns, 598 F.Supp. at 1281. It is to be noted that November 1984 is within the time frame involved in the current dispute over appellate services, i.e., October 1983 through April 1985.

As to the seven attorneys who worked in connection with the Vaughns trial, their rates will be increased 15 percent across the board to reflect increased experience and rising fee rates in the relevant geographic area. This “rough justice” result is reflected in Appendix D hereto.

Five of plaintiffs’ attorneys who worked on the appeal did not work on the case during trial. Hogan and Hartson is requesting between $85 and $105 for their services.

Jonathan Abram joined Hogan and Hart-son in November 1984. His practice at the firm has concentrated in litigation, including employment discrimination work. Hogan and Hartson is requesting $105 per hour for his services. This is the same figure requested for the work of Nell Bonaparte, an attorney with prior Vaughns experience whose hourly rate is reduced herein to $74.50 per hour. Since Hogan and Hartson seemingly feel that the services of these two attorneys were of comparable value, despite Mr. Abram’s short time with the firm, his limited civil rights experience and the fact that his work consisted of researching and writing of memoranda, the rate of $74.50 will be used herein for Mr. Abram.

Messrs. Cohen, Farquhar, and Hollman all joined Hogan and Hartson after September 1983 and have concentrated in litigation. Seemingly, none had previous civil rights experience. In connection with the appeal after this court’s 1983 opinion, those three attorneys primarily engaged in research and preparation of memoranda. Plaintiffs request $85 per hour for each attorney. In this court’s 1984 opinion, Hogan and Hartson’s request for $85 per hour for an attorney with a seemingly similar background was cut by this court to $70 per hour. Vaughns, 598 F.Supp. at 1282. In addition, at the same time, this court also reduced a $95 request to $75 and a $75 request to $65 for certain associates. Id. Under the circumstances, an award of $70 per hour for the services of each of Messrs. Cohen, Farquhar, and Hollman would seem fair.

For Lowell Sturgill, an associate for whom Hogan and Hartson is requesting $95 per hour, an award of $75 per hour would seem to maintain the approach being followed herein and at the same time acknowledge the higher value placed on Mr. Sturgill’s services by his law firm.

With regard to the law clerks and paralegals, i.e., in connection with their work at trial, plaintiffs sought $35 to $50 per hour in the first fee case and this court cut each such request by $5 per hour. Id. at 1283, noting that while $50 per hour awards for paralegals had been upheld as reasonable, the work performed by such paralegals was of an unusually sophisticated nature. 598 F.Supp. at 1283. Seemingly, the work of law clerks and paralegals in connection with the Vaughns trial, as well as the appeal, has consisted of cite checking and other basic paralegal-type tasks. With that in mind, those rates have been set as reflected in Appendix D hereto.

V. EXPENSES

In this case, plaintiffs are seeking reimbursement for an expense labeled “Transportation/Messenger Service” in the amount of $1,262.82. Defendants claim that it is merely the same type of transportation expenses, under a new name, which were disallowed by this court in its 1984 opinion, Vaughns, 598 F.Supp. at 1289, and should be similarly rejected at this time by this court. Opposition Memorandum at 7. Plaintiffs, in response, state that the new item is different: it includes none of the Baltimore hotel or meal costs included in the earlier petition and consists primarily of necessary messenger runs to federal court in Baltimore and defendants’ counsel in Baltimore and Greenbelt, as well as runs within Washington, D.C., to pick up slip opinions and use express mail. Reply Memorandum at 10-12. Plaintiffs would appear correct in asserting that position except that any extra costs incurred because the law offices of Hogan and Hart-son are located outside this district should be eliminated. That firm, having chosen to handle this litigation in this district, and being given the benefit of a “Baltimore-Washington” area fee rate analysis, should bear such extra costs. Since, however, with the exclusion of such expenses as those relating to hotels and meals in Baltimore, those extra costs would appear de minimis, plaintiffs’ quest for travel expenses, reduced as indicated infra, is hereby granted.

The requested expenses as a whole should be reduced by the same percentage as the requested fees to reflect the considerations already discussed supra parts I and II. This court followed that approach in its 1984 opinion. See Vaughns, 598 F.Supp. at 1290. Accordingly, all expense requests are reduced by 24 percent to reflect time spent on nonprevailing issues on appeal and other not sufficiently necessary expenses.

VI. SERVICES PERFORMED AFTER THIS COURT FILED ITS 1984 OPINION

On September 11, 1985, plaintiffs filed a Second Supplemental Motion for Attorneys’ Fees and Expenses for the period from April 1, 1985 to September 1, 1985. The work giving rise to that request includes plaintiffs’ opposition to defendants’ appeal to the Fourth Circuit from this court’s 1984 fee opinion, plaintiffs’ supplemental application for fees and plaintiffs’ reply memorandum to defendants’ opposition thereto, plaintiffs’ opposition to a second stay motion by defendants, and time spent on the instant petition through September 1, 1985. Since plaintiffs prevailed fully on appeal in connection with this Court’s 1984 fee opinion, see Vaughns v. Board of Education of Prince George’s County, 770 F.2d 1244 (4th Cir.1985), no reduction in hours requested is necessary to adjust for nonpre-vailing issues. However, in accordance with the discussion supra part IV, a 10 percent reduction in all hours will be made to account for work not viewed as sufficiently necessary.

Two new attorneys from Hogan and Hartson are named in the second supplemental motion and thus rates must be fixed for them. William Bradford is a partner in the firm with civil rights experience. Hogan and Hartson is requesting $175 per hour for Mr. Bradford’s services, the same as it requested for Joseph Hassett. Mr. Bradford may have more prior civil rights experience than Mr. Hassett, but it would seem inappropriate to pay him a higher rate for this case than Mr. Hassett, who has headed Hogan and Hartson’s efforts and was commended by this court for his efforts. Vaughns, 598 F.Supp. at 1282. Under the circumstances, Mr. Bradford will be given the same rate as Mr. Hassett, $149.50 per hour.

Craig Hoover joined Hogan and Hartson in October 1984 and has specialized in litigation. His situation would appear quite similar to that of Messrs. Cohen, Farqu-har, and Hollman. His requested fee is the same as that of those three other attorneys. Accordingly, he will be awarded the same rate, i.e., $70 per hour.

Plaintiffs also request fees of $45 and $40 per hour for paralegals Milde and Rocktashel. In accord with the discussion supra part IV, relating to paralegal rates, those requests will be reduced by $5 per hour.

Hogan and Hartson also seeks $1,368.72 in expenses. The only questionable entry is $37.00 for “Transportation/Messenger Service.” That amount is de minimis and will not be deducted. However, in accord with the discussion supra part V, the requested expenses will be reduced by 10 percent.

Appendices E and F set forth details relevant to plaintiffs’ second supplemental motion.

VII. OTHER GEORGIA HIGHWAY FACTORS

In parts I-VI above, this court has attempted to determine the reasonable number of hours spent by plaintiffs’ attorneys in connection with the services under scrutiny and a reasonable rate therefor. Multiplication of those figures result in the “lodestar” amount. See Vaughns, 598 F.Supp. at 1283. That amount calls for such adjustment, if any, as is required by the relevant Georgia Highway factors which have not already been considered supra. See id.

The preceding analysis has already included Georgia Highway factors 1, 3, 5, and 9. Whereas, factor 6, the contingency nature of the case, justified a llh percent increase in the lodestar to reflect the risk of litigation in the Vaughns trial, such an increase has not been sought by the plaintiffs in connection with the fee and expenses request dealt with in this opinion.

Factor 8 requires comparing the fee award with the results obtained. If a party achieved little success for the hours and dollars invested, a court may reduce the lodestar amount as excessive. Conversely, if a party achieved extraordinary results, an increase is justified. Hensley v. Eckerhart, 461 U.S. 424, 428, 435-36, 103 S.Ct. 1933, 1936, 1940-41, 76 L.Ed.2d 40 (1983). On balance, factor 8 considerations require no adjustments herein. Nor do factors 4, 7, and 10-12 appear to apply in any significant way in the instant case. Accordingly, no adjustment to the lodestar amount is required herein.

VIII. THE FUTURE

Plaintiffs shall submit to this court an Order in compliance with the within opinion on or before January 24,1986. Defendants may submit their comments concerning that Order by February 3, 1986 and plaintiffs may submit their further comments, if any, by February 10, 1986. In the future, the parties will be required to apply the principles set forth by the Fourth Circuit in affirming this Court’s 1984 opinion, that latter opinion and the within opinion, and to exercise their best efforts to agree upon fee and expense requests submitted by plaintiffs. If counsel cannot so agree, this court will appoint a Master to make recommendations to this court concerning those matters, with the fees and expenses of the Master being born by the parties and/or their respective counsel in proportions recommended by the Master and finally determined by this court to be appropriate.

APPENDIX A

Reduction for Time Spent on Nonprevailing Issues

Attorney Requested Hours Intent Reduction Subtotal

Abram 20.50 0 20.50

Bonaparte 11.00 0 11.00

Brannan 360.25 -50.44 305.81

Cohen 63.75 -8.93 54.82

Farquhar 18.50 0 18.50

Hassett 325.50 -45.57 279.93

Hollman 143.50 0 143.50

Keeney 143.50 -20.09 123.41

Mincberg 3.50 0 3.50

Sturgill 128.75 -18.02 110.73

Tatel 18.00 0 18.00

Paralegal/Law Requested Hours Intent Reduction Clerk Subtotal

McCann 13.50 0 13.50

McDonald 9.50 0 9.50

Slowinski 6.00 -.84 5.16

Strausberg 9.25 -1.30 7.95

Others

Chachkin 6.40 -1.56 4.84

APPENDIX B

Reduction for Unreasonable Hours

Attorney Subtotal A Reduction Subtotal B

Abram 20.50 -2.05 18.45

Bonaparte 11.00 -1.10 9.90

Brannan 309.81 -30.98 278.83

Cohen 54.82 -5.48 49.34

Farquhar 18.50 -1.85 16.65

Hassett 279.93 -27.99 251.94

Hollman 143.50 -14.35 129.15

Keeney 123.41 -12.34 111.07

Mincberg 3.50 -.35 3.15

Sturgill 110.73 -11.07 99.66

Tatel 18.00 -1.80 16.20

Paralegal/Law Clerk

McCann 13.50 -1.35 12.15

McDonald 9.50 -.95 8.55

Slowinski 5.16 -.52 4.64

Strausberg 7.95 -.80 7.15

Others

Chachkin 4.84 -.48 4.36

APPENDIX C

Reduction for Work on 1983 Stay Motion

Attorney Subtotal B Reduction Award

Abram 18.45 0 18.45

Bonaparte 9.90 0 9.90

Brannan 278.83 -.75 278.08

Cohen 49.34 0 49.34

Farquhar 16.65 0 16.65

Hassett 251.94 -17.00 234.94

Hollman 129.15 0 129.15

Keeney 111.07 -4.75 106.32

Mincberg 3.15 0 3.15

Sturgill 99.66 -21.00 78.66

Tatel 16.20 0 16.20

Paralegal/Law Clerk Subtotal B Reduction Award

McCann 12.15 12.15

McDonald 8.55 8.55

Slowinski 4.64 4.64

Strausberg 7.15 7.15

Others

Chachkin 4.36 4.36

APPENDIX D

Hourly Rates

Attorney Requested Rate Awarded Rate

Abram 105.00 74.50

Bonaparte 105.00 74.50

Brannan 115.00 86.25

Cohen 85.00 70.00

Farquhar 85.00 70.00

Hassett 175.00 149.50

Hollman 85.00 70.00

Keeney 145.00 126.50

Mincberg Sturgill 120.00 95.00 121.25 75.00

Tatel 175.00 165.75

Paralegal/Law Clerk

McCann 40.00 35.00

McDonald 65.00 60.00

Slowinski 50.00 45.00

Strausberg 35.00 30.00

Others

Chachkin 175.00 172.50

APPENDIX E

Second Supplemental Fee Request

Attorney Requested Hours 10% Reduction Awarded

Abram 157.00 -15.70 141.30

Bradford 6.00 -.60 5.40

Brannan 68.00 -6.80 61.20

Hassett 29.75 -2.98 26.77

Hoover 22.75 -2.28 20.47

Keeney 9.00 -.90 8.10

Mernick 56.50 -5.65 50.85

Paralegal/Law Clerk

Milde 10.50 -1.05 ^ es

Rocktashel 17.50 —1.75 fr-

APPENDIX F

Hourly Rates for Second Supplemental Fee Award

Attorney Requested Rate Awarded Rate

Abram 105.00 70.00

Bradford 175.00 149.50

Brannan 115.00 86.25

Hassett 175.00 149.50

Hoover 85.00 70.00

Keeney 145.00 126.50

Mernick 115.00 86.25

Paralegal/Law Clerk

Milde 45.00 40.00

Rocktashel 40.00 35.00

      . See Vaughns, 598 F.Supp. at 1265-66.

      . See Vaughns, 598 F.Supp. at 1268-72, 1280 and 1283-85.

      . See Vaughns v. Board of Education of Prince George's County, 770 F.2d 1244, 1246 (4th Cir.1985).

      . See Vaughns v. Board of Education of Prince George's County, 758 F.2d 983, 992-93 (4th Cir.1985).
      On appeal, however, plaintiffs prevailed in their contention "that plaintiffs were entitled to a presumption that current placement disparities were causally related to prior segregation and that the burden of proving otherwise rested on defendants," id. at 991, in connection with special education and TAG placement programs. On remand, this court held that “for the reasons set forth on the record during the said June 7, 1985 hearing ... during the trial proceedings in the within litigation which preceded the Fourth Circuit’s said opinion, defendants have shown by a preponderance of the evidence that as to both the special education and TAG placement programs there are no vestiges of past segregation, no intentional discrimination, and no violation of any order of this Court.” Order of June 11, 1985 at —. Thereafter, plaintiffs amended their request for attorneys fees to eliminate any hours in connection with those aspects of the within appeal. Reply Memorandum at 1-2.

      .That entry illustrates the problem of identifying time spent on certain issues from the Hogan and Hartson records. Mr. Hassett’s corresponding entry for 12/1/83 refers to four hours of ”[a]nalysis, research, and conference with J. Keeney, P. Brannan, and L. Sturgill re appeal brief,” but makes no mention of intent. Declaration of Joseph M. Hassett, Attachment A at 2. Mr. Sturgill’s entry cites five and one-half hours for ”[l]egal research concerning ancillary programs; discussion with J. Hassett,” mentioning neither intent nor Ms. Brannan. Declaration of Lowell V. Sturgill, Jr., Attachment A at 2.

      . Pages 28 through 33 in the opening brief and page 24 in the reply and answering brief.

      . Pages 15 through 38 in the opening brief and 1 through 26 in the reply brief;

      . Plaintiffs state, seemingly correctly, that defendants added the total time for any entry which included the boundary charge in calculating 23.75 hours. Due to plaintiffs’ own inability specifically to subdivide multiple entries, however, a more precise calculation is not possible.

      . Because the time sheets submitted by plaintiffs' counsel do not set forth time spent, on any given day, by issue, any time entry indicating that part of the requested hours relates to work spent on the 1983 stay motion will be excluded.

      . Of the five attorneys who had prior civil rights experience, four were awarded their requested rates, while the other one was cut by 6 percent. Of the remaining ten attorneys with little or no prior civil rights experience, only one was awarded his requested rate, while the other nine were cut by 11 to 45 percent. See Vaughns, 598 F.Supp. at 1280-82 (tables reflecting reductions in hourly fees sought by plaintiffs).

      . Mr. Rotman.

      . Mr. Bonaparte and Ms. Brannan.

      . See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The 12 factors set forth in that case are discussed in this court’s 1984 opinion, Vaughns, 598 F.Supp. at 1283-88.


author: DONALD J. PORTER, Chief Judge.

text:
    Lavina WHITE HORSE, Suella High Elk, Yvonne Garreaux, and Susan Chiu, on behalf of themselves, their children and all others similarly situated, Plaintiffs, v. Margaret HECKLER, as Secretary of the Department of Health and Human Services; and James W. Ellenbecker, as Secretary of the South Dakota Department of Social Services, Defendants.
    Civ. No. 85-3006.
    United States District Court, D. South Dakota, C.D.
    March 29, 1985.
    Supplemental Memorandum Opinion Oct. 25, 1985.

      David W. Curtis, Yvette Hall War Bon-nett, Billie Jones, Albert C. Jones, Dakota Plains Legal Services, Mission, S.D., for plaintiffs.
    Janice Godtland, Asst. Atty. Gen., Dept, of Social Services, Pierre, S.D., for defendant James W. Ellenbecker, Secretary, South Dakota Dept, of Social Services.
    Robert A. Mandel, Asst. U.S. Atty., Pierre, S.D., Ronald S. Luedemann, Regional Atty., Thomas A. Nelson, Jr., Deputy Regional Atty., Dept, of Health & Human Services, Denver, Colo., for defendant Margaret Heckler.
   CASE SUMMARY

DONALD J. PORTER, Chief Judge.

Named plaintiffs are residents of the State of South Dakota who receive Aid to Families with Dependent Children (AFDC). 42 U.S.C. §§ 601 et. seq. They bring this action as representative members of a class comprised of all South Dakota households that have had their AFDC grants terminated, decreased, or have been denied AFDC benefits as a result of state and federal regulations promulgated under Section 2640 of the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, 1145 (to be codified as amendments to 42 U.S.C. §§ 602(a) and 657(b)). Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343(3) and (4).

Section 2640 requires that an AFDC assistance unit now be comprised of all co-resident, minor full and half-siblings and that calculations of the unit’s AFDC eligibility and level of assistance include any income already available to such sibling. Formerly, a family could choose to exclude certain children from the assistance unit and thereby exclude consideration of their income in the eligibility and grant amount determinations. Defendants have interpreted Section 2640 as mandating inclusion of the assistance unit’s new members’ Old Age, Survivors, and Disability Insurance (OASDI), 42 U.S.C. §§ 401 et seq., and child support income in the AFDC calculations, and have promulgated regulations to that effect. Plaintiffs challenge these regulations on the grounds that they are inconsistent with the Social Security Act and state domestic relations law as well as being constitutionally infirm. Plaintiffs seek declaratory and injunctive relief.

On February 22, 1985, this Court conditionally granted plaintiffs’ motion for certification as a class action and entered a temporary restraining order enjoining defendant Department of Social Services from implementing Section 2640 so as to reduce or terminate AFDC benefits during the month of March, 1985. The necessity of expeditious handling of this action prompted the Court to set a March 18, 1985 trial date and to order that simultaneous trial briefs be submitted five days prior to trial. Plaintiffs and both defendants submitted briefs and all parties were represented at trial. The Department of Health and Human Services (HHS), however, relying on the literal language of Federal Rule of Civil Procedure 12(a), has not yet answered the complaint and would not agree to the stipulation of facts agreed to by the plaintiffs and the Department of Social Services. Although this Court originally intended to decide whether or not both preliminary and permanent injunctive relief should be granted, federal defendant’s failure to file a responsive pleading compels the Court to confine its decision to plaintiffs’ motion for a preliminary injunction.

FACTUAL SUMMARY

As previously related, plaintiffs and defendant Department of Social Services executed a stipulation of facts on the date of trial. Although not signed by a representative of federal defendant, counsel for the HHS admitted there was very little factual dispute in this case. Transcript of Trial at 9. Further, counsel for the federal defendant had no objection to the Court’s considering the stipulation as the undisputed facts for purposes of plaintiffs’ preliminary injunction motion. Transcript of Trial at 15. This being the case, the Court recites the following factual summary.

Plaintiff Lavina White Horse is the mother of seven children and the grandmother of one child, all of whom reside with her. Four of plaintiffs’ children are the offspring of a now deceased individual who was “insured” as defined by the Social Security Act, 42 U.S.C. § 414(a), at the time of his death. As the deceased insured’s “survivors”, plaintiff’s four children collectively receive a monthly OASDI check for $456. Plaintiff, as representative payee for the benefit of her four children, receives the monthly check, and, according to the stipulated facts, completely exhausts the OASDI money in the support of these four children.

Plaintiff is also the mother of three other children. For herself and these three children, plaintiff receives a monthly, AFDC check in the amount of $371. Prior to October 1, 1984, (the date Section 2640 of the Deficit Reduction Act of 1984 went into effect), plaintiff’s four children receiving OASDI benefits were not included in any AFDC assistance unit. Because these four children were not AFDC recipients, their Social Security income was not included in determining the needs of plaintiff and her other three children.

As a result of the federal and state regulations at issue here which implement the HHS interpretation of Section 2640, plaintiff’s AFDC assistance level was cut to $83 per month. The reason for this decrease being the inclusion of the OASDI recipients’ $456 per month income in determining the need of the entire household. Similarly, named plaintiffs High Elk and Garreaux are the mothers of children some of whom are receiving OASDI income, some of whom are not. All the children, according to the Deficit Reduction Act, must now be included in the plaintiffs’ respective AFDC assistance units. Under the new regulations implementing the Act, and as occurred in the case of Lavina White Horse, inclusion of OASDI-recipient children in their AFDC assistance units has caused significant decreases in the amount of plaintiffs High Elk and Garreaux’s AFDC assistance.

The circumstances leading to plaintiff Susan Chiu becoming a named plaintiff in this action, however, are somewhat different than the other three named plaintiffs. Plaintiff Chiu is the mother of two minor children who reside with her. One child, pursuant to a Pennsylvania state court order, is the beneficiary of $205 of child support paid monthly to plaintiff. Plaintiff and her other child previously constituted an AFDC assistance unit entitled to $286 per month. However, this AFDC grant was terminated when plaintiff, in violation of the regulations at issue in this case, refused to include her child support-recipient child in the assistance unit.

DISCUSSION

AFDC is a joint federal and state benefit program established by the Social Security Act, and designed to provide financial assistance to needy children and the parents and caretaker relatives who live with them. Categorical federal grants are available to a state provided the state submits and has approved by the Secretary of HHS a plan which defines AFDC eligibility criteria and meets the requirements of 42 U.S.C. § 602(a) and its implementing regulations. Section 2640 of the Deficit Reduction Act of 1984 amends Section 602(a) by requiring that in determining the needs of an applicant child, the state responsible for administering the AFDC program include:

(A) any parent of such child, and
(B) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of section 604(a), if such parent, brother, or sister is living in the same home as the dependent child, and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 205(j), in the case of benefits provided under Title II)....

Deficit Reduction Act of 1984, § 2640, Pub.L. No. 98-369, 98 Stat. 494, 1145 (to be codified as 42 U.S.C. 602(a)(38)).

Prior to the Deficit Reduction Act of 1984, as illustrated by the case histories of the named plaintiffs in this action, family members living together were not required to file for AFDC benefits as a unit. A parent filing for a dependent child could choose to include or exclude himself or other potentially eligible children from the assistance unit. Under the provisions governing inclusion of income prior to the Deficit Reduction Act income of a family member was counted only if the family member was also a member of the AFDC assistance unit.

The Deficit Reduction Act was signed into law on July 18, 1984. Defendant HHS published in the Federal Register on September 10, 1984 regulations implementing its interpretation of the Deficit Reduction Act. Interim Final Rules, Aid to Families with Dependent Children, 49 Fed.Reg. 35, 586 (to be codified at 45 C.F.R. §§ 205-06, 232-34, 238-40). The regulations, which went into effect October 1, 1984, mandate the inclusion of all income and resources, received by persons included in the assistance unit as income to the assistance unit, notwithstanding legal restrictions on the use of that income.

Consistent with the regulations promulgated by the HHS defendant South Dakota Department of Social Services amended its regulations with the following provision:

67:12:05:57. Benefits to children and adults derived from government sources. All benefits derived from governmental sources, such as OASDI, unemployment compensation, worker’s compensation, military allotments, and compensations which are actually received by applicants for or recipients of public assistance shall be considered available to and deductible from the requirements recognized on the assistance plan on the same basis as net income derived from real or personal property. If an individual within the household receives SSI, the department may not consider that individual’s income or resources when determining ADC eligibility and the amount of assistance. If the recipient payee’s only child is determined eligible for and becomes a recipient of SSI, the recipient payee continues to be eligible for ADC provided all other eligibility factors are met.
***#*>ft

A.R.S.D. 67:12:05:57 (1984). While there is no child-support counterpart contained in the South Dakota Administrative Regulations, the testimony at trial of the Administrator of the South Dakota Office of Economic Assistance who manages the South Dakota AFDC program leaves no doubt that child support income would be deemed available to the entire assistance unit, notwithstanding court-imposed restrictions on its use. Transcript of Trial at 26-29, 43-48, 51, 54-55. This conclusion is further supported by the evidence of the Department of Social Service’s treatment of plaintiff Chiu.

A. OASDI PLAINTIFFS

Plaintiff class contends that the federal and state regulations requiring the deeming of OASDI income to a sibling or half-sibling as available to a dependent child not only violates the clear purpose of Title II of the Social Security Act, 42 U.S.C. §§ 401 et. seq., but also conflicts with federal law pertaining to the fiduciary duties of representative payees. In response, defendants point to the specific reference to Section 205(j) of the Social Security Act (codified at 42 U.S.C. § 405(j)) found in Section 2640 of the Deficit Reduction Act. Section 205(j) of the Social Security Act permits representative payees to receive OASDI checks for the benefit of individuals entitled to the money, and by its reference in Section 2640, defendants maintain that Congress intended OASDI income to be counted as available to the AFDC assistance unit such as set forth in their regulations.

A dependent child of an individual entitled to Title II benefits who dies a “fully or currently insured individual” is entitled to a “child’s insurance benefit” each month the child otherwise qualifies. 42 U.S.C. § 402(d). The language of Section 402(d) indicates that OASDI benefits are intended to replace the support lost by a child when his or her income-earning parent dies. This interpretation finds support in the legislative history, S.Rep. No. 404, 89th Cong., 1st Sess, 110 (1965), U.S.Code Cong. & Admin. News 1965, 1943, and is consistent with Supreme Court decisions on the subject. See Mathews v. Lucas, 427 U.S. 495, 507, 96 S.Ct. 2755, 2763, 49 L.Ed.2d 651, 662 (1976); Jimenez v. Weinberger, 417 U.S. 628, 634, 94 S.Ct. 2496, 2500, 41 L.Ed.2d 363, 369 (1974).

Defendants’ regulations, however, run contrary to the intent of Section 402(a). The regulations deem as “available” to the entire AFDC assistance unit OASDI child benefits which are not available. These benefits are for the exclusive use of the deceased insured’s children, not for half-siblings unrelated to decedent who happen to reside in the same household.

Another component of the statutory scheme of Title II consistent with the idea that OASDI are restricted to the use of the named beneficiary is 42 U.S.C. § 408(e) which provides that whoever

having made application to receive payment under this title for the use and benefit of another and having received such a payment, knowingly and willfully converts such a payment, or any part thereof, to a use other than for the use and benefit of such other person
♦ # * * * %
shall be guilty of a felony....

One need only review the size of the decreases in the named plaintiffs’ AFDC checks to realize the Hobson’s Choice forced upon them by defendants’ regulations.

The OASDI child benefit program is plainly for the exclusive purpose of compensating the children of an insured individual for lost parental support. Defendants’ interpretation of Section 2640 of the Deficit Reduction Act of 1984 appears to conflict with the clear purpose of the OAS-DI program. In resolving this conflict, noteworthy is the language of Section 2640 itself. Contrary to defendants’ contention, and notwithstanding Section 2640’s rather ambiguous reference to Section 205(j) of Title II, this Court does not read Section 2640 as mandating that amounts received by one child as OASDI be subtracted dollar for dollar from AFDC grants received by other members of the child’s household. This Court concludes that Congress did not intend such an unfair result as follows from defendants’ regulations; to cut AFDC grants by amounts received from OASDI which cannot be properly used to compensate for the loss.

Instructive in resolving the conflict presently before the Court is the recent Eighth Circuit decision in Owens v. Heckler, 753 F.2d 675 (1985). In Owens, plaintiff, an eighteen-year-old secondary student, received OASDI extended student benefits under 42 U.S.C. § 402(d). Plaintiff also received AFDC benefits on behalf of her minor child. As a result of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 357, and a concomitant change in HHS policy, plaintiff was notified that her AFDC grant would be reduced by the amount she received as extended student benefits. In affirming the district court decision for the plaintiff, the Eighth Circuit provided the following analysis:

Recognizing the distinct purposes of the two programs (the OASDI program: to aid a recipient in obtaining an education; and the AFDC program: to assist in the care of dependent children in their own homes or the home of a relative), the court must attempt to enforce both applicable statutes without compromising the overriding purpose of either statute. A reconciliation of the two statutes is appropriate even if the wording in the laws and regulations allows a contrary interpretation. See Markham v. Cabell, 326 U.S. 404, 411, 66 S.Ct. 193, 196, 90 L.Ed. 165 (1945). Broadly interpreting the statutes at issue to achieve their intended purposes, Elam v. Hanson, 384 F.Supp. 549, 553 (N.D. Ohio 1974), the district court properly concluded that the amount of OASDI extended student benefits that are actually needed for educational expenses should be excluded from the income and resources of the family for the purposes of determining eligibility and level of support under AFDC provisions of 42 U.S.C. § 602(a) and regulations promulgated thereunder.

Owens, supra, 753 F.2d at 679.

While it is true that Owens was decided under pre-Deficit Reduction Act law, the analysis utilized by the court is still applicable to the circumstances of this case. This court must attempt to enforce the Deficit Reduction Act of 1984 amendments to the AFDC program so as not to eviscerate the purpose of OASDI. Broadly interpreting the statutes at issue to achieve their intended purposes, this Court concludes that defendants’ regulations are contrary to the provisions of Title II and construe Section 2640 of the Deficit Reduction Act so as to bring about a result never intended by Congress.

B. CHILD SUPPORT PLAINTIFFS

Before discussing the merits of the claims of plaintiff Chiu and all others similarly situated, it should be noted that Section 2640 contemplates a somewhat unique approach to the inclusion of child support payments as income available to the AFDC assistance unit. Section 2640 provides that the first $50 of child support income should be disregarded in calculating the eligibility and assistance level of an AFDC unit. Deficit Reduction Act of 1984 § 2640, Pub.L. No. 98-369, 98 Stat. 494,1145 (to be codified at 42 U.S.C. § 657(b)). Other than this “$50 disregard”, however, as previously stated, defendants’ regulations treat such income as available to the entire household by allowing a dollar for dollar reduction from AFDC grants for every dollar of child support over $50 paid for the benefit of a household member.

At trial, in open court, the administrator in charge of South Dakota’s AFDC program testified that no inquiry was or is made regarding court-imposed restrictions on the use of the child-support money. He explained that the state policy is based on federal regulations which require, without exception, inclusion of every child support dollar over $50 as income available to the AFDC assistance unit. Transcript of Trial at 46.

The area of family law has historically been recognized as an area of exclusively state concern. Within this area of concern is the power of a state court to compel such child support as it deems just, and to modify such decrees as the circumstances dictate. See, e.g., S.D.C.L. § 25-4-41 (1984). The Supreme Court has stated that “[sjtate family and family-property-law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1, 11 (1979) (citing United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 506, 15 L.Ed.2d 404, 410 (1966)).

In this respect, defendants’ regulations seemingly override a state court’s ability to adjudicate the issue of whether a minor child of the marriage shall receive support from a parent to replace the support previously afforded during the marriage. Under the regulations, no inquiry is made as to whether the child support income is restricted to the use and benefit of the child or children of the parent making the payment. Rather, it is conclusively presumed available. Moreover, this Court does not believe that Congress could have intended the result which follows from application of defendants’ regulations — that the child support-payment parent’s payment would be spent on all household members. Therefore, this Court holds that where child support income is directed by a state court order to be used for the benefit of a specific child or specific children, defendants’ regulations may not be utilized to reduce AFDC grants of other household members, calculated on the basis of the needs of such other household members. Such a conclusion will not, in the opinion of this Court, do the kind of major damage to clear and substantial federal interests contemplated by the Supreme Court in the above-cited decisions.

CONCLUSION

Clear from a reading of Section 2640 of the Deficit Reduction Act is the requirement that all siblings, by the whole or by the half-blood, must be included in a dependent child’s AFDC assistance unit. Equally clear, and consistent with the purpose of the Deficit Reduction Act—to reduce this Nation’s deficit crisis—is that income received by such siblings which is not restricted for their exclusive use, such as OASDI and certain child support income, may be used in the AFDC eligiblity formula to ultimately reduce AFDC grant amounts.

This Court does not reach the constitutional issues presented, having decided the case on the basis of federal law. The sole issue here is whether plaintiffs have adequately demonstrated the prerequisites for granting a preliminary injunction. See, e.g., Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 114 (8th Cir.1981).

This Court holds that plaintiffs have so demonstrated. The foregoing represents the findings and conclusions of the Court.

SUPPLEMENTAL MEMORANDUM OPINION

This is a class action filed by plaintiff families seeking preliminary and permanent injunctive relief barring the enforcement of certain regulations promulgated by the defendants pursuant to § 2640 of the Deficit Reduction Act of 1984 (D.R.A.), Pub.L. No. 98-369, 98 Stat. 494, 1145 (to be codified as amendments to 42 U.S.C. §§ 602(a) and 657(b)). The regulations in question provide that income payable to only some members of an Aid to Families with Dependent Children (AFDC) assistance unit can be “deemed” available for use by the entire assistance unit. 49 Fed.Reg. 35, 586 (to be codified at 45 C.F.R. §§ 205-06, 232-34, 238-40); A.R. S.D. 67:12:05:57(1984). In particular, the regulations and practices of the defendants “deem” Old Age, Survivors and Disability Insurance (OASDI), 42 U.S.C. § 401 et seq. (1982), and child-support payments previously payable to only certain family members available to the entire family for purposes of determining A.F.D.C. grants. The plaintiff class consists of families whose A.F.D.C. benefits have been terminated or reduced as a result of enforcement of the challenged regulations.

On April 1, 1985, this court granted a preliminary injunction enjoining enforcement of the regulations. For the reasons stated below and in the court’s previous memorandum opinion, White Horse v. Heckler, 627 F.Supp. 848 (D.S.D.1985), the temporary injunction is dissolved and a permanent injunction is granted. Civ.P. 65. Fed.R.

DISCUSSION

The factual basis of this case was fully developed in the court’s prior opinion and will not be restated here. In that opinion, the court held that the ambiguous reference in § 2640(a) of the D.R.A. to § 205(j) of the Social Security Act, 42 U.S.C. § 405(j)(1982), was insufficient to repeal prior limitations on the use of O.A.S.D.I. payments by other than the named beneficiary. White Horse, maj. op. at 852; 42 U.S.C. §§ 405®, 408(e) (1982). As to court-ordered child-support payments, this court concluded that “Congress could [not] have intended the result which follows from application of defendants’ regulations....” Id. at 854. The court, therefore, enjoined enforcement of defendants’ regulations and practices as contrary to Congressional intent. Id. at 854.

Defendants now contend that the recent decision by the United States Court of Appeals for the Eighth Circuit in Cunningham v. Toan, 762 F.2d 63 (1985), requires dissolution of the temporary injunction and judgment in their favor. The defendants’ reliance on Cunningham is misplaced, however, because that case is clearly distinguishable as to both the facts and the applicable law.

Plaintiffs in Cunningham were minors who received O.A.S.D.I. benefits and also had children of their own. Plaintiffs’ benefits were sent to a representative payee to be used for the minor parents. 728 F.2d at 1103. The State of Missouri automatically deemed the O.A.S.D.I. benefits of the minor parents available to the minor parents’ children for A.F.D.C. grant eligibility purposes. Id.

The court of appeals initially affirmed the district court’s permanent injunction outlawing the challenged practice. The court found that even though federal regulations allowed O.A.S.D.I. recipients to use their benefits to support their dependent children, 20 C.F.R. § 404.2040(c)(1985), Missouri’s policy impermissibly limited the parents’ discretion, as authorized by the regulation to use or not to use the parents’ benefits for their children. 728 F.2d at 1104.

The United States Supreme Court summarily remanded Cunningham for reconsideration in light of the intervening passage of the Deficit Reduction Act. Toan v. Cunningham, — U.S.-, 105 S.Ct. 896, 83 L.Ed.2d 912 (1985). On remand, the court of appeals reversed its prior ruling and held that

in making the A.F.D.C. eligibility and grant determination for the dependent child, the state must include the dependent child’s parent in the assistance unit if the parent lives in the same household as the dependent child. In addition, the state must include “any income of or available for” the parent if the parent lives in the same household as the dependent child, “notwithstanding section 205®, in the case of benefits provided under Title II.”

Cunningham, 762 F.2d at 65 (1985). The case was remanded to the district court for consideration of the previously-undecided constitutional issues.

The problem faced by the court of appeals in Cunningham is different than that presently before this court. At the time of passage of the D.R.A., it was not unlawful for a person who received O.A.S. D.I. payments to share those benefits with their dependent children. 20 C.F.R. § 404.-2040(c); Cunningham, 728 F.2d at 1104. The court of appeals’ interpretation of § 2640(a), therefore, did not act to repeal prior prohibitions against sharing O.A.S. D.I. benefits. While the ambiguous reference in § 2640(a) to § 205® may be sufficient to allow a state to limit a parent’s discretion concerning whether or not to use those payments for their childrens’ benefit, see Cunningham, 762 F.2d at 66, it is not sufficient to repeal the prohibitions which clearly outlaw the use of O.A.S.D.I. bene-; fits by anyone other than the named beneficiaries and their dependent children. Gorrie v. Heckler, Civ. 4-84-1203 (D.Minn. Sept. 10, 1985); see 42 U.S.C. § 408(e) (1982).

Defendants have cited several district court cases dealing with the issue now before the court, but they add nothing new and the .court does not find them persuasive. Cunningham did not involve child support payments.

CONCLUSION

Defendants’ reliance on Cunningham is misplaced. In that case, the court of appeals was faced with minor parents sharing their O.A.S.D.I. benefits with their dependent children — an act not previously unlawful. Here, however, the court is confronted with a conclusive presumption that child support and O.A.S.D.I. benefits may be shared with others — an act clearly in violation of state and federal law. Cunningham, therefore, is fundamentally different and inapplicable here.

For the reasons stated above and in this court’s prior opinion in this case, the temporary injunction is dissolved and a permanent injunction is granted. The federal defendant’s uncontested motion to redefine the class is also granted. This memorandum constitutes the court’s findings of fact and conclusions of law.

      . Although counsel for the federal defendant informed the Court at trial that HSS reserved its right to have sixty days to answer in accordance with Rule 12(a), counsel offered no explanation for the federal defendant’s strict adherence to the rule in the face of the exigent circumstances surrounding this case. Transcript of Trial at 7-8.

      . with the exception of Supplemental Security Income, 42 U.S.C. §§ 1381 et seq., [not material here]

      . 42 U.S.C. § 405(j) provides:
      When it appears to the Secretary that the interest of an applicant entitled to a payment would be served thereby, certification of payment may be made, regardless of the legal competency or incompetency of the individual entitled thereto, either for direct payment to such applicant, or for his use and benefit to a relative or some other person.

      . South Dakota’s regulations deal only with O.A. S.D.I. payments. A.R.S.D. 67:12:05:57(1984). The state Department of Social Services, however, does consider child support payments as resources available to the entire A.F.D.C. assistance unit. See Transcript of Trial at 26-29, 43-48, 51, 54-55.

      . The parties have agreed that the question of the appropriateness of a permanent injunction may be decided on the record developed for the preliminary injunction. Fed.R.Civ.P. 65(a)(2).

      . The issue of what application, if any, Cunningham has to child-support payments to minor parents was not raised by the defendants and therefore is not before the court for consideration.