216 Cal.App.2d 270 (1963)
METROMEDIA, INC., et al., Plaintiffs and Respondents,
v.
CITY OF PASADENA et al., Defendants and Appellants.
Civ. No. 26575.
California Court of Appeals. Second Dist., Div. Two.
May 16, 1963.
 Wendell R. Thompson, City Attorney, Fred M. Metheny, Assistant City Attorney, Donald B. Hagler, and Evelynn M. Finn, Deputy City Attorneys, for Defendants and Appellants.
 Gibson, Dunn & Crutcher, William French Smith, Iverson & Hogoboom and William P. Hogoboom for Plaintiffs and Respondents.
 Richman, Garrett & Ansell, Lionel Richman and Brobeck, Phleger & Harrison as Amici Curiae on behalf of Plaintiffs and Respondents.
 HERNDON, J.
 This appeal by the City of Pasadena and other named defendants, hereinafter generally referred to as "appellants," is taken from a judgment which declares that certain ordinances of appellant city regulating billboards are unconstitutional and enjoins their enforcement.
 Ordinance No. 4487, hereinafter referred to as the "billboard *272 ordinance," provides, in part, that effective May 17, 1959, "No roof sign shall be erected, constructed, relocated or maintained upon any building excepting those which (1) bear the name of the building whereon the sign is located; (2) bear the name of the person, firm or corporation occupying the building or portion thereof and the type of business conducted by said person, firm or corporation. All said signs must be an integral part of the building. No more than one roof sign shall be permitted for each exterior facing of a building." This ordinance defined "roof sign" as "a sign erected upon or above a roof or parapet of a building." Existing signs were exempted from this ordinance except insofar as their removal might be required by the zoning ordinance applicable to such signs or uses.
 Ordinance No. 4495, effective July 19, 1959, hereinafter referred to as the "zoning ordinance," amended "The Zoning Plan and Code of the City of Pasadena" by providing in part that all roof signs, except those relating to the ownership or business conducted on the premises, would have to be removed prior to July 1, 1961.
 On July 15, 1954, appellant city had amended its then effective zoning ordinance so as to prohibit the future construction of outdoor advertising structures in Zone C-2 (retail-commercial), but permitted the continued maintenance of such signs then extant. The above mentioned zoning ordinance of July 19, 1959, also provided that existing "ground signs" which did not meet the requirements of the 1954 amendment, would have to be removed by July 1, 1961. However, the continued construction and use of "ground signs" still remained permissible in all other commercial and industrial zones.
 Respondents herein are two firms "engaged in the outdoor advertising business, including the erection and maintenance of outdoor advertising structures on leased property, and the sale of advertising space on such outdoor advertising structures. ..." Prior to the enactment of the ordinances in question, respondent Metromedia, Inc., had erected 13 roof signs in the City of Pasadena and respondent Pacific Outdoor Advertising Company, hereinafter referred to as "Pacific," had erected 20 such signs.
 The sole question presented by this appeal is whether or not the trial court erred in its judgment, holding in effect, that the distinction made in these ordinances between "point-of-sale" and "non-point-of-sale" signs rendered them unconstitutional *273 as being "unreasonable, arbitrary, confiscatory and discriminatory in classification. ..." (Italics added.) [1] Although respondents have urged many other considerations in the brief filed by them in this court, it is apparent from the judgment, the findings of fact, and the stipulations entered into by the parties during the trial, that no other basis for a holding of unconstitutionality either was urged by respondents during the trial or was passed upon by the trial court.  [fn. 1]
 These stipulations by respondents indicating the limits of the issues being presented were virtually mandatory in any event, because their expert on zoning plans and ordinances had testified earlier that he considered it established beyond question that sound planning and zoning practice required the total elimination of billboards in certain districts and their regulation in all districts. However, he expressed his opinion that "non-point-of- sale" signs still should be considered proper in industrial areas and, further, that there was, in his opinion, "no objective basis for discriminating in regulation between standard poster panels and point-of- sale signs."
 We, therefore, are not called upon to consider whether or not certain early decisions in this state (which were written prior to the need for, or the adoption of, comprehensive zoning plans) would require us to destroy the patterns sought to be created by local legislative bodies acting upon reports and studies laboriously compiled by their planning commissions. Today, economic and aesthetic considerations together constitute the nearly inseparable warp and woof of the fabric upon which the modern city must design its future. Respondents, having spared the trial court the task of attempting to distinguish and weigh these threads, may not now urge such considerations upon this court in support of a judgment rendered after a trial which was limited to more restricted issues.
 [2] Further, although the trial court found that the ordinances in question created an unconstitutional "classification," it expressly struck from the proposed judgment as submitted by respondents, a determination that said ordinances also operated as an unconstitutional "prohibition" of respondents' businesses. This was entirely proper, because said ordinances do not even purport to "prohibit" outdoor *274 advertising by means of non-point-of-sale billboards in those industrial and commercial zones in which respondents claim any right to operate, but merely regulated their use of rooftops and required the elimination of the nonconforming use formerly permitted in C-2 zones.
 Therefore we are not called upon to decide whether or not respondents' billboards might be eliminated entirely from the City of Pasadena by appropriate legislation directed to that purpose. [3] The only evidence submitted by respondents in support of this secondary issue was offered for the purpose of showing that as the city expands it becomes increasingly difficult for them to find ground sites that are visible to a sufficiently large surrounding area, and that, as the values of such properties increase, it becomes more difficult for them to compete economically in obtaining such sites from other potential commercial users. This problem, however, would face respondents regardless of the regulations placed upon roof signs. Certainly the inexorable pressures of supply and demand cannot reasonably be urged as grounds for declaring unconstitutional otherwise valid regulations.
 Finally, by reason of the stipulations which are set forth in footnote, 1, appended hereto, no issue was tendered to the court below with respect to the reasonableness of the period allowed respondents for the removal of their nonconforming signs; hence, this potential basis for arguing the unconstitutionality of the ordinances is not before us. (Cf. City of Santa Barbara v. Modern Neon Sign Co., 189 Cal.App.2d 188, 195-196 [11 Cal.Rptr. 57].)
 [4a] As indicated, then, we are faced with this single question: Is an ordinance which, for regulatory purposes, separately classifies point- of-sale and non-point-of-sale "unreasonable, arbitrary, confiscatory and discriminatory" in such classification? We believe that common sense, logic, precedent and the public interest combine to dictate a definite and positive answer in the negative.
 At the time this case was tried, no appellate court in California had decided the precise issues then presented, and respondents, in their points and authorities filed below, relied upon a memorandum opinion of the Superior Court of Monterey County filed June 26, 1961. On December 27, 1962, Division Three of the First District Court of Appeal, reversed the trial court on this point in National Advertising Co. v. County of Monterey, 211 Cal.App.2d 375, 379-380 [27 Cal.Rptr. 136], stating: *275
 "It is true that signs 'relating only to goods sold or services rendered upon the building site on which ... erected or maintained,' as permitted by the ordinance, may, although strictly limited as to size and number, have much the same appearance as off-site signs. A significant difference, however, is that the on-site sign is but a part of, and wholly incidental to, the business conducted upon the site and which the ordinance has properly determined to be permissible in that district. Off-site signs, on the contrary, constitute a wholly distinct business, that of outdoor advertising (see opinion of Brennan, J., in United Advertising Corp. v. Borough of Raritan, 11 N.J. 14 [93 A.2d 362]). The ordinance before us merely limits the business of outdoor advertising, as it limits other businesses, to specified districts. An early (1909) case cited by plaintiffs (Varney & Green v. Williams, supra, 155 Cal. 318 [100 P. 867, 132 Am.St.Rep. 88, 21 L.R.A. N.S. 744]) is not in point because it did not involve a comprehensive zoning ordinance."
 "From other jurisdictions, plaintiffs cite only a trial court opinion (Central Outdoor Advertising Co. v. Village of Evandale (Ohio Ct. Com. Pleas) 124 N.E.2d 189). The great weight of authority supports the propriety of the classification (United Advertising Corp. v. Borough of Raritan, supra; Kelbro, Inc. v. Myrick, 113 Vt. 64 [30 A.2d 527]; Rockingham Hotel Co. v. North Hampton, 101 N.H. 441 [146 A.2d 253]; Criterion Service, Inc. v. City of East Cleveland (Ohio App.) 55 Ohio L.Abs. 90 [88 N.E.2d 300]; Landau Advertising Co. v. Zoning Board of Adjustment, 387 Pa. 552 [128 A.2d 559]; Murphy, Inc. v. Town of Westport, 131 Conn. 292 [40 A.2d 177, 156 A.L.R. 568]). We accept the reasoning of those decisions, and sustain the classification."
 [5] The following discussion found in the cited case of United Advertising Corp. v. Borough of Raritan, 11 N.J. 14 [93 A.2d 362, 365-366], appears most apposite here:
 "The business sign is in actuality a part of the business itself, just as the structure housing the business is a part of it, and the authority to conduct the business in a district carries with it the right to maintain a business sign on the premises subject to reasonable regulations in that regard as in the case of this ordinance. Plaintiff's placements of its advertising signs, on the other hand, are made pursuant to the conduct of the business of outdoor advertising itself, and in effect what the ordinance provides is that this business shall not to that extent be allowed in the borough. [6] It has *276 long been settled that the unique nature of outdoor advertising and the nuisances fostered by billboards and similar outdoor structures located by persons in the business of outdoor advertising, justify the separate classification of such structures for the purposes of governmental regulation and restriction. [Citations.]"
 "And as such separate classification offends no constitutional provision, there also exists no invidious discrimination in the provisions of the ordinance barring plaintiff's signs in the business and industrial zones while allowing therein manufacturing plants, junk yards, coal and coke yards and other uses suggested by plaintiff, as also having undesirable attributes. It is enough that outdoor advertising has characteristic features which have long been deemed sufficient to sustain regulations or prohibitions peculiarly applicable to it."
 It is to be noted that, unlike the ordinance discussed in the Raritan decision, the ordinances here involved do not even purport to prohibit respondents from conducting their businesses in all zones, or, in fact, in any zone where such businesses have been authorized since 1954. It merely regulates their activities to the extent that rooftop signs no longer will be permitted. The reasonableness of this regulation is strengthened by the other provisions in the ordinance which require that even those point- of-sale rooftop signs that still may be used in the affected zones henceforth "must be an integral part of the building." The enforcement of this requirement will result in the removal of all those point-of-sale signs which respondents assert are "identical" to their own, for it does not appear that any of respondents' signs is "an integral part of the building" upon which it is placed.
 In addition, most of respondents' arguments relating to their "use" of the land upon which their signs are located are mere exercises in sophistry, for in no real sense are the signs "used" upon the land on which they are located. As the president of respondent Pacific Co. testified: "Q. Would you describe the manner in which you as a business or industry locate these locations for your business? A. Well, we have certain standards in our business that we must adhere to, and those standards are largely based on circulation and visibility. Q. Would you explain what you mean by circulation? A. Well, in order to warrant the cost of our medium, there must be certain minimum standards of traffic, number one; and, number two, in the field of visibility, obviously *277 what you are going to sell must have a reasonable opportunity to be seen."
 Clearly, then, the signs are used in a realistic sense only where the light reflected therefrom strikes the eyes of the users of the public streets or adjoining private property. In the case of roof signs, their true "use" may occur at considerably distances, even on property located in other zones, and may not even be visible, i.e., "capable of being used," by persons located upon the same property as the sign. Moreover, unlike point-of-sale signs, the members of the public required to "use" respondents' signs gain no benefit therefrom in the sense that they are thereby directed to the location of a business activity which they may be immediately desirous of patronizing.
 [4b] On the contrary, respondents' signs merely extol the alleged merits of various products in the abstract and are neither directional guides nor identifying markers relating to the business or use actually being conducted on the property upon which they are located. The distinction between the two classes of signs, therefore, is not unreasonable, arbitrary or discriminatory in any constitutionally prohibited sense.
 Judgment in the instant case was rendered prior to our Supreme Court's decision in Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515 [30 Cal.Rptr. 638, 370 P.2d 342], upholding an ordinance that effectively prohibited the owner of property, suitable only for use as a source of rock, sand and gravel, from exploiting the same, notwithstanding the finding of the trial court that such operations could be conducted thereon "with compatibility to adjacent properties." [7] The court stated at pages 522-523:
 "So in Ambler, supra, The United States Supreme Court said (272 U.S. at p. 388 [47 S.Ct. 114, 71 L.Ed. 303, 311, 54 A.L.R. 1016, 1025]) 'If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.' This test of the validity of comprehensive zoning regulations has consistently been applied and followed by this court, so that whenever we have found that reasonable minds might differ as to the necessity or propriety of particular regulations or classifications, we have bowed to the legislative determination and sustained the regulation. [Citations]."
 In the instant case, viewing the evidence in the light most favorable to respondents, as we are required to do, the best that can be said is that it proved that reasonable minds *278 could differ rather than that reasonable minds could not differ. Thus, respondents' witnesses offered their opinions that the admitted "sign clutter" was more the fault of point-of-sale signs than of respondents' signs, and therefore that the present ordinance was not best suited to solve the recognized problem. Further, when respondents' expert on planning was discussing the possible grounds for the classification made, he stated:
 "I then looked at another possible basis for distinguishing between point- of-sale signs and standard poster panel signs, and I asked myself, is it possible that a distinction can be made on the basis that if point-of-sale signs are permitted and standard outdoor signs are prohibited, the number of signs will be reduced, and I honestly think, it is my real opinion, that this is the real reason for making a distinction between point-of-sale signs and standard outdoor signs. It is an unspoken reason. I am not sure that it is a valid reason because I very much doubt that that will reduce the total number of roof signs. But even if it were to reduce it to a total number of roof signs, I would say that was not a reasonable and objective basis for regulating the number of roof signs. They should be directly related with provisions that apply equally to all types of roof signs." (Italics added.)
 Upon cross-examination this same witness testified: "Q. You recognize the fact in general that signs are an evil in Pasadena? A. Yes, I think the sign situation is bad and I think that it is in general, and I think that the so- called point-of-sale signs are the ones that are the offenders. ... Q. And I am also sure, from your experience as a planner, you realize that it is impossible practically to cure all these evils at one time; isn't that true? A. Yes, but I would say that ... the proper method of attacking the problem is not to say, 'We will cure the evil all at one time,' but that we will begin to correct the evil uniformly, and I would think we would devote our major efforts to the areas in which the greatest problems existed first. ... Q. Now, I believe you testified that there was no difference, in your opinion, or words to that effect, between point-of-sale signs and outdoor advertising structures in Pasadena? A. That's correct, sir. No, I did not mean to say there was no difference. There obviously are some differences. What I meant to say, and I hope I said it, was that I was able to find no objective basis for discriminating in regulation between standard poster panels and point-of-sale signs." (Italics added.) *279
 Evidence was received upon which the trial court made findings, inter alia, that respondents' signs provided a useful service to the community and were of economic value to it; that some local businesses used the signs and other businesses dealt in the products advertised thereon; that the Pasadena Chamber of Commerce utilized outdoor advertising signs located outside the city to induce people to shop therein; that outdoor advertising signs were substantially less expensive to advertisers than other forms of advertising; that respondents' signs had won art awards for the quality of the material portrayed thereon; that "leading authorities" recognize outdoor advertising as an accepted use of land and buildings in certain areas; and that there is "no measurable causal connection between outdoor advertising signs, and traffic accidents." (Italics added.)
 [8] Accepting these findings as true, it may be assumed, as stated by respondents' expert, that appellant city was unwise in attacking the evil admittedly existing within its jurisdiction, in the fashion determined upon; however, as was stressed in the Consolidated Rock case, supra, 57 Cal.2d 515, 523, this assumption furnishes no ground upon which a court properly may substitute its judgment for the lawfully constituted authority, and on constitutional grounds, deprive the authorized legislative body of its right to experiment, a right that necessarily includes the right to err.
 Relative to the question of uniformity of method in attacking an admitted evil, it long has been recognized, even in the application of penal legislation, that: "A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named." (Mr. Justice Holmes in Patsone v. Pennsylvania, 232 U.S. 138, 144 [34 S.Ct. 281, 58 L.Ed. 539, 543].)
 [9] If uniformity or symmetry is not demanded in the application of criminal sanctions or in the total prohibition of otherwise legal and socially useful activities in specified areas of a municipality, then certainly it is not required here where respondents' activities are not being prohibited, but only regulated in a manner found reasonably essential to protect the public interest. *280
 The judgment is reversed.
 Fox, P. J., and Ashburn, J., concurred.
 "I will agree with you, and I think counsel would almost stipulate, that what you have said is true, because in my book it is true; but this case, I know that you have the legislative right to enact ordinances about signs, we all agree on that, there is no question." The discussion then proceeds: "Mr. Metheny [Counsel for appellant city]: Apparently not. Mr. Hogoboom: [Counsel for respondent Pacific Co.]: Oh, no, we agree to that. Mr. Smith [Counsel for respondent Metromedia]: With respect to regulation of signs? Oh, yes. Mr. Hogoboom: Certainly we have been regulated for years. Mr. Smith: In my opening statement I conceded that. Mr. Hogoboom: We conceded that."
 "The Court: To get back, the turning point of this case is the fact that you are regulating non-point-of-sale signs and you are allowing point-of-sale signs. That is what I think is the main issue and probably the only issue so far in this case. ... You have the police power to regulate signs, we all agree, don't we? Mr. Hogoboom: Yes. Mr. Smith: Yes. The Court: The only issue here, I think, is this unconstitutional discrimination. Mr. Metheny: I would like to agree with you if that were the only issue, I would be much more relaxed than I am now. The Court: That is all I see. What other issue do you think there is in this case? Mr. Metheny: I think this question whether or not we have the police power if you find that there is___"
 "The Court: Opposing counsel have already said that you have the power to regulate signs. Mr. Hogoboom: Our whole testimony has gone to prove the point that you have just made and that is that it is an illegal discrimination, there is no valid basis for it, and we have simply set up all of the possible bases for distinction and knocked them down. That is all we are doing. Mr. Metheny: Will counsel stipulate that is the only issue? Mr. Smith: Could I say this? Mr. Metheny: If they want to narrow it down, I will, but the minute we get out of this court into the District Court of Appeal they might well argue, I will put it that way, we have legislated purely on aesthetics because there is nothing else to support this, and then they will cite the Varney and Williams versus Green and say, 'Here is a tremendous holding that says you cannot do it just for this reason,' which brings up another issue. Mr. Smith: We would like to note, in any case, we think the present testimony is entirely irrelevant. For one thing it goes to issues, I think, which are not in dispute, namely, I guess the City of Pasadena is growing, and secondly that in any case, assuming the purpose for this, we will say, quite aside from the point-of-sale versus other signs discrimination, that the city, on the grounds that it is growing, cannot single out one legitimate business and say 'You have to go,' and not treat other businesses involved in the same situations on the same basis. ..."
 "The Court: Let me try to summarize and see if we can get an agreement, and you correct me if I am wrong. No one here, neither side, contends that the City of Pasadena does not have the right to regulate signs under their police power. Mr. Hogoboom: I will go further. I will stipulate they have a right to regulate within their comprehensive zoning plan any commercial establishment within the City, where they can be located, in what zones they can be located, the conduct of the business in various licensing statutes. They can even regulate hours of business of some because for valid reasons there are distinctions, but they simply cannot, we contend, single out___ The Court: Let's stop right there. Do you agree with that, Mr. Smith? Mr. Smith: Yes. Mr. Metheny: We will accept that stipulation."
 "The Court: That is out of the way. Now, the only issue that I see right now is that the plaintiffs feel that while the City has the right to regulate signs, that in this particular ordinance or ordinances they acted in a discriminatory manner, discriminating against certain businesses and excluding other businesses. And in effect, I am saying the same thing, they had no right to prohibit non-point-of-sale signs and allow the three types of signs that are in the ordinances. Mr. Metheny: You are stating that as the only issue? The Court: Isn't that it? Mr. Metheny: I will stipulate that is the only issue, only other issue. Mr. Smith: The judge referred to two issues. The Court: Two are actually one as far as I am concerned. Do you think there are two? Mr. Smith: Yes, I do."
 "The Court: You state them then. Mr. Smith: I do. I think one issue goes to the question as to whether or not the City can legislate a business such as ours out of existence, prohibit it, in commercial and industrial areas where other businesses are permitted. That is one issue. As I say, that is the basic issue. Then, the second issue goes to the question as to whether or not they can discriminate as we say they have here between so- called point-of-sale signs and our type of signs, you see. The Court: Then you are contending that it would even be an invalid act if the city were to say no advertising roof signs at all? Mr. Smith: In commercial and industrial areas, yes. ... The Court: But at least we have narrowed down the situation to two issues, one of which, I think, is very important, the one I said before. Mr. Metheny: Yes, I concur."
NOTES
[fn. 1]  1. The following proceedings appear in the trial record. The court, addressing counsel for appellants with regard to the scope of admissible evidence, stated:


    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 15-204V
                                      Filed: August 30, 2016
                                        Not for Publication

*************************************
ROSEMARY ST. GEORGE,                      *
                                          *
              Petitioner,                 *       Damages decision based on
                                          *       stipulation; influenza (“flu”)
 v.                                       *       vaccine; brachial neuritis
                                          *
SECRETARY OF HEALTH                       *
AND HUMAN SERVICES,                       *
                                          *
              Respondent.                 *
                                          *
*************************************
Ronald C. Homer, Boston, MA, for petitioner.
Claudia B. Gangi, Washington, DC, for respondent.

MILLMAN, Special Master

                              DECISION AWARDING DAMAGES 1

         On August 30, 2016, the parties filed the attached stipulation in which they agreed to
settle this case and described the settlement terms. Petitioner alleges that her January 16, 2013
receipt of influenza (“flu”) vaccine caused her to develop brachial neuritis. Petitioner further
alleges that she suffered the residual effects of this injury for more than six months. Respondent
denies that petitioner’s alleged brachial neuritis, or any other injury, was caused by flu vaccine.
Nonetheless, the parties agreed to resolve this matter informally.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
        The undersigned finds the terms of the stipulation to be reasonable. The court adopts the
parties’ attached stipulation and awards compensation in the amount and on the terms set forth in
the stipulation. Pursuant to the stipulation, the court awards:

    a. a lump sum of $200,000.00, representing compensation for all damages that would be
       available under 42 U.S.C. § 300aa-15(a). The award shall be in the form of a check for
       $200,000.00 made payable to petitioner; and

    b. a lump sum of $1,604.71, representing reimbursement of a lien for services rendered on
       behalf of petitioner. The award shall be in the form of a check for $1,604.71, made
       payable jointly to petitioner and

                        Commonwealth of Massachusetts-CRU
                        Casualty Recovery
                        P.O. Box 417811
                        Boston, MA 02241-7811

        Petitioner agrees to endorse this check to the State of Massachusetts.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: August 30, 2016                                                             s/ Laura D. Millman
                                                                                Laura D. Millman
                                                                                Special Master

2
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                    2


                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0528n.06
                            Filed: August 27, 2008

                                            No. 07-3542

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                  )
DONNA GEMBUS,                                     )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    NORTHERN DISTRICT OF OHIO
METROHEALTH SYSTEM,                               )
                                                  )
       Defendant-Appellee.                        )
                                                  )
                                                  )

Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellee MetroHealth Medical

Center (“MetroHealth”) terminated its employee plaintiff-appellant Donna Gembus, who had taken

a leave pursuant to the Family and Medical Leave Act. The district court granted summary judgment

in favor of MetroHealth and Gembus appealed. For the reasons set forth below, we affirm the

district court’s grant of summary judgment in favor of MetroHealth.

                                                  I.

       MetroHealth hired Donna Gembus as a medical assistant in the dialysis department in June

1990. At the time she was hired, Gembus received a MetroHealth Employee Handbook, which

includes attendance standards and family and medical leave policies. The attendance policy states

“[e]mployees are tardy when they are not at their assigned work station at the start of their shift as
defined by the employee’s supervisor.” An employee receives one tardy point each time he or she

is late; tardiness is calculated for twelve months and after twelve months, tardy points disappear.

Within a twelve month period, three tardy points results in a “record of discussion,” five points leads

to a verbal warning, ten points leads to a written warning, fifteen points results in a final written

warning, and twenty points means the employee is subject to termination.

       Gembus transferred, at her request, to a liaison specialist position in 2001. Liaison specialists

answer incoming telephone calls and assist callers with multiple tasks, including setting up

appointments, referring MetroHealth patients and non-patients to clinics, maintaining physicians’

schedules and a reference guide for nurses in the department, and directing pharmacists to the

appropriate physician. The liaison specialist position required Gembus to work rotating shifts,

including working both day and night shifts and working a combination of weekdays and weekends.

       The Line Department, where Gembus worked, had a work schedule that required employees

to log into a telephone sign-in system five minutes before their scheduled shift time and allowed

them to log out ten minutes before the end of the shift, with half of the ten-minute period used to

clean their desks. Gembus was aware of and understood the early sign-in requirement that became

effective in September 2002. Although employees were not compensated for the five-minute period

before their shift started, they were considered late if they did not arrive prior to the five-minute

window.

       Gembus accrued thirteen tardiness points and received a written warning before her 2001

transfer to liaison specialist. In July 2001, Gembus accumulated twenty-three points but instead of

terminating her, MetroHealth gave Gembus a one-day suspension for tardiness and for falsification

of a sign-in sheet. Gembus received additional verbal and written warnings, including a verbal

                                                  2
warning on July 22, 2002, a written warning on September 29, 2002, a final written warning on

November 1, 2002, a final written warning on November 27, 2003, a final written warning on

October 15, 2004, and a final written warning on May 2, 2005.1 MetroHealth personnel discussed

with Gembus her tardiness at three performance appraisals while she was a liaison specialist. She

signed each appraisal, admitting the tardiness problem had been discussed.

       Gembus was diagnosed with fibromyalgia, a chronic condition that causes pain in muscles

and soft tissue surrounding joints, prior to 2001. In early 2005, her symptoms worsened and

Gembus’s physician, Dr. Michael Harrington, referred her to MetroHealth’s Employee Assistance

Program, where it was suggested that she take a leave of absence pursuant to the FMLA. Gembus

was on leave from March 1 to April 1, 2005, for fibromyalgia and chronic fatigue syndrome.

       Dr. Harrington stated in February 2005 that Gembus’s fibromyalgia “requires steady day shift

work without fluctuating shifts in order to manage organization of sleep and circadian rhythms.”

After her return from FMLA leave, Gembus asked to be placed on daytime shifts. MetroHealth

initially denied the request, and her attorney made a request under the Americans With Disabilities

Act, 42 U.S.C. § 12101 et seq. Gembus testified at her deposition that she encountered hostility

when she asked to work only day shifts.

       1
         On August 14, 2002, August 26, 2002, September 25, 2002, September 28, 2002, September
29, 2002, November 1, 2002, March 25, 2003, May 24, 2003, July 3, 2003, September 2, 2003,
September 10, 2003, October 6, 2003, November 17, 2003, November 26, 2003, November 27,
2003, March 16, 2004, March 23, 2004, March 30, 2004, August 7, 2004, September 7, 2004,
September 19, 2004, September 28, 2004, October 15, 2004, November 24, 2004, December 5,
2004, January 1, 2005, May 11, 2005, June 3, 2005, June 8, 2005, and June 10, 2005, Gembus
accrued tardy points for arriving within an unpaid five minute period of time before the scheduled
shift started.

                                                3
        While MetroHealth considered her request and gathered more information, it gave Gembus

daytime shifts. Gembus received seven tardy points in April, May and June 2005, the last of which

raised her accumulated point total to twenty-one. MetroHealth conducted a pre-discharge meeting

with Gembus on June 13, 2005, and terminated her the same day.

        Gembus filed this action. The district court2 granted MetroHealth’s motion for summary

judgment on February 27, 2007. It dismissed the retaliation claim under Ohio Revised Code §

4112.02 because MetroHealth presented evidence of a non-discriminatory reason for terminating

Gembus, tardiness, and Gembus failed to introduce evidence from which an inference could be

drawn that the explanation was pretextual. The district court granted summary judgment on the

Family and Medical Leave Act (“FMLA”) claim based on the same reasoning.

                                                  II.

                                                  A.

        We review a district court’s decision to grant summary judgment de novo. Pagan v. Fruchey,

492 F.3d 766, 770 (6th Cir. 2007) (citation omitted). Summary judgment may be granted only if

there are no genuine issues of material fact and one party is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of any

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To support its

motion, the moving party may show “that there is an absence of evidence to support the nonmoving

party’s case.” Id. at 325.

        2
       The parties consented to the case being heard by United States Magistrate Judge Nancy
Vecchiarelli.

                                                   4
        Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party

to set forth specific facts showing a triable issue of material fact. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Fed. R. Civ. P. 56(e). “The mere existence

of a scintilla of evidence in support of the plaintiff’s position will be insufficient [to defeat a motion

for summary judgment]; there must be evidence on which the jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In reviewing a district court’s

decision to grant summary judgment, we view all the facts and the inferences drawn therefrom in

the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.

                                                  B.

        We turn to Gembus’s retaliation claim brought under the FMLA. The FMLA entitles an

eligible employee to up to twelve weeks of leave during a twelve-month period if the employee has

a “serious health condition that makes the employee unable to perform the functions of the position

of such employee.” 29 U.S.C. § 2612(a)(1)(D).

        As no direct evidence of retaliation is present in this case, the court must apply the tripartite

burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). “At the outset, the

plaintiff’s burden is merely to present evidence from which a reasonable jury could conclude that

the plaintiff suffered an adverse employment action under circumstances which give rise to an

inference of unlawful discrimination.” Id. at 570 (citation and internal quotations omitted).

        In order to make out a prima facie case, a plaintiff must show that (1) she engaged in

protected activity, (2) she suffered an adverse employment action, and (3) a causal connection

                                                    5
existed between the adverse employment action and the protected activity. Skrjanc v. Great Lakes

Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001).

        Once the plaintiff makes a prima facie case, the burden shifts to the defendant to introduce

“evidence of a legitimate, non-discriminatory reason for the adverse employment action.” Bryson,

498 F.3d at 570. If the defendant introduces such evidence, “the burden shifts back to the plaintiff

to show that the defendant’s proffered reason is a pretext for unlawful discrimination.” Id.

“Although the burdens of production shift, [t]he ultimate burden of persuading the trier of fact that

the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”

Id. (citation and quotation marks omitted).

        With respect to whether Gembus has made out a prima facie case of retaliation, Gembus

engaged in protected activity when she took a leave pursuant to the FMLA from March 1 to April

1, 2005. She suffered an adverse employment action when she was terminated on June 13, 2005.

She also argues that she has shown a causal connection between her FMLA leave and her

termination. Gembus stated in her deposition that she encountered hostility when she asked to work

only day shifts. She argues that the proximity in time between the accommodations sought, FMLA

leave and the request to work the day shift, and the termination, along with that hostility, is enough

to establish the requisite causal connection. Following the approach taken by the district court, we

assume, without deciding, that Gembus has established a prima facie case of retaliation.

        The burden shifts to MetroHealth to present a “legitimate non-discriminatory” reason for

Gembus’s termination. Bryson, 498 F.3d at 570. MetroHealth met this burden by introducing

evidence that it terminated Gembus for chronic tardiness. MetroHealth discharged Gembus after she

accrued more than twenty tardy points in a twelve-month period.

                                                   6
       The burden remains with Gembus to show that MetroHealth’s reason for her termination –

tardiness in violation of its policy – is a pretext. Id. Gembus may meet this burden by demonstrating

that the proffered reason “1) has no basis in fact; 2) did not actually motivate the adverse action; or

3) was insufficient to motivate the adverse action.” Abbott v. Crown Motor Co., Inc., 348 F.3d 537,

542 (6th Cir. 2003) (citation omitted). In order to meet her burden, Gembus must show both that

MetroHealth’s stated reason for her termination was false and that discrimination was MetroHealth’s

motivation for her discharge. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

       Gembus argues that Metrohealth has not presented a non-retaliatory reason for her

termination because the proffered reason, tardiness, was untrue. Gembus explains that she would

not have accumulated twenty tardy points if the four shifts in May and June 2005 where she arrived

during the five minute unpaid period before her shift began were not counted in this tally. Gembus’s

attempt to show that MetroHealth’s explanation has no basis in fact fails because although Gembus

was required to sign in five minutes before her shift began, she was also allowed to sign out ten

minutes before a shift ended. Moreover, Gembus accrued tardy points during this five minute period

both before and after her FMLA leave. In addition, Gembus did not introduce any relevant evidence

showing that MetroHealth’s explanation for her discharge was pretext. Furthermore, her evidence

of the hostility she encountered when she requested an accommodation to work the day shift does

not address MetroHealth’s reason for her discharge because it does not refute the evidence that

Gembus had twenty-one tardiness points in violation of MetroHealth policy, which allowed for her

termination, or show that tardiness was not the reason for her termination. Gembus has failed to

introduce evidence showing that either MetroHealth’s stated reason for her termination was false or

that retaliation was the actual reason.

                                                  7
       We affirm the grant of summary judgment in favor of MetroHealth on Gembus’s retaliation

claim under the FMLA.

                                                 C.

       We next consider Gembus’s state law retaliation claim. Ohio Revised Code § 4112.02

provides, in relevant part, that it is “unlawful discriminatory practice . . . For any person to

discriminate in any manner against any other person because that person has opposed any unlawful

discriminatory practice defined in this section or because that person has made a charge, testified,

assisted, or participated in any manner in any investigation, proceeding, or hearing under sections

4112.01 to 4112.07 of the Revised Code.” Ohio Rev. Code § 4112.02(I). “[T]o discharge without

just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire,

tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related

to employment” is also forbidden on account of disability. Id. § 4112.02(A).

       To make a prima facie case of retaliation, a plaintiff must show that “(1) she engaged in a

protected activity; (2) her employer knew about the protected activity; (3) her employer took adverse

employment action against the plaintiff; and (4) there was a causal connection between the protected

activity and the adverse employment action.” Hollingsworth v. Time Warner Cable, 812 N.E.2d 976,

987 (Ohio Ct. App. 2004).3 “If the plaintiff establishes a prima facie case, then the burden shifts to

the employer to articulate some legitimate, nondiscriminatory reason for its actions.” Id. (citation

and quotation marks omitted). If the employer meets this burden, the plaintiff then must show that

       3
       This is very similar to the test for retaliation under the FMLA. Id. Despite the similarities,
we analyze the state law claim separately from the federal claim. Id.

                                                  8
the articulated reason was a pretext and not the “true reason for the employment decision.” Id.

(citation and quotation marks omitted).

       Gembus argues she has made out a prima facie case of retaliation because she has satisfied

all of the elements of a prima facie case, including that she has shown a causal connection between

her request to work the day shift and her termination. Gembus claims MetroHealth retaliated against

her because she requested a disability accommodation, to work the day shift.

       Gembus contends she engaged in protected activity under Ohio law when she requested to

work the day shift only as an accommodation for an alleged disability. Ohio law provides that “an

employer must make reasonable accommodation to the disability of an employee or applicant, unless

the employer can demonstrate that such an accommodation would impose an undue hardship on the

conduct of the employer’s business.” Ohio Adm. Code 4112-5-08(E)(1). Ohio law states that

accommodations may include job restructuring, such as modified schedules. Id. 4112-5-08(E)(2).

Whether Gembus actually was disabled is not the query.             “A plaintiff may prevail on a

disability-retaliation claim even if the underlying claim of disability fails.” Bryson v. Regis Corp.,

498 F.3d 561, 577 (6th Cir. 2007) (internal quotation marks and citation omitted).4 Thus, Gembus

argues, and MetroHealth does not dispute, that her request to work the day shift as an

accommodation for her disability is a statutorily protected activity. See id. MetroHealth was aware

Gembus requested to work the day shift only. Gembus therefore suffered an adverse employment

action when she was terminated on June 13, 2005.

       4
        Ohio’s disability discrimination statute is analyzed similarly to the Americans with
Disabilities Act. Kleiber v. Honda of America Mfg, Inc., 485 F.3d 862, 872 (6th Cir. 2007).

                                                  9
        The parties dispute whether Gembus has established a causal connection between her request

to work the day shift and her termination. Gembus offers the following as evidence of the causal

connection: (1) the hostility she encountered when she asked to work only day shifts and (2) the

proximity in time of her request to work the day shift and her termination. Here, as with her federal

retaliation claim, we assume, without deciding, that this is sufficient to establish a prima facie case.

        MetroHealth has the burden to present a “legitimate, nondiscriminatory reason” for Gembus’s

termination. Hollingsworth, 812 N.E.2d at 987. MetroHealth met this burden by introducing

evidence that it terminated Gembus for chronic tardiness because she accumulated twenty-one tardy

points, more than the twenty required for termination under its stated policy.

        The burden shifts to Gembus to show that MetroHealth’s stated reason for her discharge is

pretextual. Id. A plaintiff may demonstrate pretext by showing: (1) that the stated reasons for her

firing had no basis in fact, (2) that the stated reasons for her firing were not the actual reasons, and

(3) that the stated reasons for her firing were insufficient to motivate the discharge. Chandler v.

Dunn Hardware, Inc, 860 N.E.2d 1042, 1048 (Ohio Ct. App. 2006). “To show pretext, the employee

must prove that the employer’s reason is false and that discrimination was the real reason for the

adverse employment action.” Id. at 1045.

        Gembus argues that Metrohealth has not presented a non-discriminatory reason for the

termination because the proffered reason, tardiness, had no basis in fact. Specifically, Gembus

argues she would not have accumulated twenty tardy points at the time of her termination if

Metrohealth did not count the shifts where she arrived before her scheduled shift but after the five-

minute early arrival window commenced. Although she asserts no Fair Labor Standards Act claim,

                                                  10
her argument is essentially that counting the many instances on which she arrived during this

window, including four after her return from FMLA leave, violates the Fair Labor Standards Act.

        Gembus’s argument that the tardiness policy violated law fails. MetroHealth’s policy stated

that employees had to log into a telephone sign-in system five minutes before their scheduled shift

time but allowed them to log out ten minutes before the end of the shift, with half of that time used

to clean their desks. Because Gembus was permitted to recoup the time she was required to work

without compensation at the end of her shift, she was compensated for the full time she worked.

Therefore, MetroHealth’s policy does not violate the Fair Labor Standards Act.

        In addition, Gembus has not introduced evidence that she was terminated for retaliatory

reasons. When the employer offers a “legitimate nondiscriminatory reason” for its action, “the

presumption of intentional discrimination disappears, but the plaintiff can still prove [retaliation] by,

for instance, offering evidence demonstrating that the employer’s explanation is pretextual.”

Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003). Her evidence of temporal proximity alone

is insufficient to meet this burden because it does not address MetroHealth’s explanation for her

termination, tardiness. Furthermore, her evidence of the hostility she encountered when she

requested an accommodation to work the day shift does not address MetroHealth’s reason for her

discharge because it does not rebut the uncontradicted evidence that Gembus accumulated twenty-

one tardiness points in violation of MetroHealth policy, which allowed for her termination. In

addition to failing to prove that MetroHealth’s proffered reason for her termination was false,

Gembus also failed to introduce evidence that the real reason for her discharge was retaliation rather

than tardiness. To the extent Gembus argues that she was retaliated against because she received

tardies during the five-minute uncompensated period after she returned from FMLA leave but not

                                                   11
before her leave, her argument is belied by her tardiness record, which shows that she accumulated

tardy points during the five-minute period both before and after she took FMLA leave.

       We affirm the district court’s grant of summary judgment in favor of MetroHealth on the

retaliation claim under Ohio law.

                                                 D.

       The district court granted summary judgment in favor of MetroHealth on Gembus’s

termination in violation of public policy claim, holding that the claim was precluded because it could

only be brought when there was no civil remedy provided by a statute. It also concluded that state

and federal laws provided sufficient civil remedies. Gembus failed to raise this claim on appeal and

has abandoned it. See, e.g., O’Hara v. Brigano, 499 F.3d 492, 498 (6th Cir. 2007) (“Because O’Hara

fails to contest the district court’s procedural-default rulings as to the foregoing claims, he has

waived any such arguments.”); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991) (stating

that issues litigated in the district court but not raised on appeal are considered abandoned on appeal

and are not reviewable).

                                                  E.

       The district court granted summary judgment in favor of MetroHealth on Gembus’s claim

for failure to accommodate under Ohio Revised Code § 4112.02. It concluded that Gembus had not

met her burden of showing that she was disabled pursuant to § 4112.02. Gembus has abandoned this

claim by failing to raise it on appeal. See, e.g., O’Hara, 499 F.3d at 498.

                                                 III.

       For the foregoing reasons, we affirm the judgment of the district court.

                                                  12


23 F.Supp.2d 413 (1998)
Christopher SCANLON, Plaintiff,
v.
Gil KESSLER, Bruce Marcus, John Weis, and Gay Male S/M Activists, Defendants.
No. 97 CIV. 1140(CBM).
United States District Court, S.D. New York.
October 13, 1998.
*414 Glenn Greenwald, Law Office of Glenn Greenwald, New York, NY, for Plaintiff.
Paul O'Dwyer, New York, NY, for Defendants.

MEMORANDUM OPINION
MOTLEY, District Judge.

BACKGROUND
Plaintiff, Christopher Scanlon ("Scanlon"), commenced this action on February 19, 1997, *415 against defendants, Gil Kessler ("Kessler"), Bruce Marcus ("Marcus"), John Weis ("Weis"), and Gay Male S/M Activists ("GMSMA"), alleging, inter alia, copyright infringement under 17 U.S.C. §§ 101, et seq. Scanlon is a former board member of GMSMA, a non-profit organization that advocates for the rights of gay men with a sadomasochistic lifestyle. He alleged that defendants violated his copyrights of certain photographs by using them without his permission. On July 9, 1998, the court held defendant GMSMA liable, under 17 U.S.C. § 504(c)(1), for infringing Scanlon's copyrights as to two photographs, "Suspension" and "Pinned," by placing them on the Internet without authorization. The other individual defendants were found not liable under state law. Finding the infringements not to be wilful, the court ordered minimal statutory damages of $1000. In addition, the court found that plaintiff was entitled to a moderate award of attorney's fees and costs.
On September 17, 1998, the court held a hearing on the parties' cross-applications for attorney's fees and costs. Plaintiff claims that he is entitled to $78,475.00 in attorney's fees and $5,877.34 in costs. Defendants oppose any award of attorney's fees or costs to plaintiff and move the court to award defendants $32,344.80 in attorney's fees and costs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Plaintiff Is the Prevailing Party under Section 505 of the Copyright Act
Under § 505 of the Copyright Act ("the Act"), the prevailing party in a copyright infringement case may recover attorney's fees.[1] In Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), the Supreme Court held that prevailing plaintiffs and prevailing defendants must be treated alike when courts consider awarding attorney's fees. To be deemed a "prevailing party," the party must "succeed on a significant issue in the litigation that achieves some of the benefits the party sought in bringing suit" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also, Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir.1991). "[S]uccess on a "purely technical or de minimis" claim does not qualify a litigant as a prevailing party" Screenlife Establishment v. Tower Video, Inc., 868 F.Supp. 47, 50 (S.D.N.Y.1994).
In the present case, the plaintiff is clearly the prevailing party. Scanlon alleged that defendants infringed on his copyrights as to two photographs, "Suspension" and "Pinned."[2] In the court's memorandum opinion dated July 9, 1998 ("July 9th Opinion"), the court held that plaintiff successfully proved copyright infringement as to those two photographs. See, Scanlon v. Kessler, et al., 11 F.Supp.2d 444, 447 (S.D.N.Y.1998). However, defendants argue that plaintiff is not the prevailing party because his success was de minimis. Defendants claim to have prevailed in the action because the individual defendants were found not liable as to the copyright infringement claims, and defendant GMSMA was not found to have wilfully infringed on Scanlon's copyrights.
The court finds that defendants' argument is misplaced. First, as previously stated above, Scanlon was successful in proving the merits of his copyright infringement claims. The fact that he secured a modest statutory damage award does not mitigate *416 against his success. He was victorious as to the significant issue at bar, namely proving copyright infringement of his work. Defendants seem to confuse the law disqualifying the litigant who triumphs on a "technical or de minimis" claim from one who prevails on a central claim but does not receive his anticipated prayer for relief. Thus, the fact that Scanlon received only minimal statutory damages does not preclude him from being deemed the prevailing party. See, Branch v. Ogilvy & Mather, Inc., 772 F.Supp. 1359 (S.D.N.Y.1991) (holding that copyright owner of cookbook who received $1 in nominal damages was prevailing party under the Act).
Second, the court's conclusion that the three individual defendants were not liable rested on New York state law. In its July 9th Opinion, the court held that although Kessler, Marcus, and Weis violated Scanlon's copyrights by posting his photographs on the Internet site, they were spared from liability under Section 720-a of New York's Not-for-Profit Corporation Law, which provides that an individual director of a not-for-profit corporation (in this case, GMSMA) can only be liable if his actions were grossly negligent. See, 11 F.Supp.2d at 448. Thus, the individual defendants cannot be termed prevailing parties, as they were merely shielded from liability under state law, despite their violation of the Act.
Third, the court's finding of lack of wilfulness on the part of GMSMA does not prevent plaintiff from being awarded attorney's fees and costs. Wilfulness goes to the issue of damages and not to the ultimate issue of determining whether defendants violated the Act by infringing on Scanlon's copyrights. The court finds that Scanlon achieved some of the benefits he was seeking in bringing suit, namely protection of his copyrights and some statutory damages. Therefore, the court finds and concludes that plaintiff, and not defendants, is the prevailing party entitled to moderate attorney's fees and costs.

II. Calculation of Attorney's Fees and Costs under Section 505 of the Copyright Act
Although recovery of attorney's fees lies in the sound discretion of the trial court, the Second Circuit has developed a method for calculating such awards. Under the "lodestar" approach to determining attorney's fees, fees are determined by "multiplying the number of hours expended by each attorney involved in each type of work on the case by the hourly rate normally charged for similar work by attorneys of like skill in the area." The lodestar figure may be adjusted upward or downward "to take account of such subjective factors as the risk and complexity of the litigation and the quality of the representation." Cohen v. W. Haven Bd. of Police Comm'rs, 638 F.2d 496 (2d Cir.1980).
In using its discretionary power to determine an award of attorney's fees, the Fogerty Court ruled that a court may weigh such factors as frivolousness, motivation, objective unreasonableness of the case, and the need for deterrence. See, Fogerty, 510 U.S. 517, 535 n. 19, 114 S.Ct. 1023. While being a nonexclusive list, the factors used must advance the goals of the Act to further artistic endeavor.

A. Excessive Hourly Rate Charged by Plaintiff's Attorney
Plaintiff's counsel, Glenn Greenwald ("Greenwald"), submitted a sworn affidavit claiming a rate of $245 per hour. Defendants argue that the rate charged by Greenwald is excessive and unreasonable. The court agrees. The court finds it patently unreasonable that an attorney who has only been admitted to practice law since 1995, with little experience in the area of copyright litigation, can demand such an exorbitant rate. Nothing in Greenwald's affidavit or reply papers justifies such a rate.[3] According to the 1997 Desktop Reference on the Economics of Law Practice in New York, published by the New York State Bar Association, *417 the median salary for New York attorneys who have been in practice for less than five years is $125 per hour,[4] approximately fifty percent (50%) less than the rate Greenwald is requesting. Thus, the court finds and concludes that $125 represents a reasonable rate for Greenwald, reflecting an hourly billing rate charged by New York attorneys of like experience and skill.

B. Duplicative or Vague Entries
This case involved two straightforward claims of copyright infringement that raised no novel or complex issues of fact or law. Given these considerations, the court finds that this case should have only required one attorney and a moderate amount of pretrial preparation time. Greenwald claims to have spent a total of 271.2 hours on this case. In addition, he includes time entries for the work of a pre-bar associate, Joel Christoph ("Christoph"), billing 95.1 hours at a rate of $130 per hour. The court finds that Christoph's time is not compensable as it was unnecessary to employ a pre-bar associate, particularly given the nature of the claims involved. The court further holds that Greenwald's time is excessive and should be reduced. Greenwald will be compensated for trial time, sixteen hours, and thirty hours of pre-trial preparation time. Forty-six hours seems a generous estimate for this type of case. The court may refuse to grant fee request for time entries that are excessive or redundant. See, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Williams v. New York City Housing Authority, 975 F.Supp. 317, 325 (S.D.N.Y. 1997).
In addition, plaintiff does not itemize, with sufficient detail, time entries solely relating to the meritorious copyright claims. Plaintiff initially pursued four causes of action against the defendant: (1) copyright infringement; (2) breach of fiduciary duty; (3) breach of contract; and (4) defamation. After a three day bench trial on the copyright infringement claims, plaintiff voluntarily dismissed two of his four claims.[5] Yet, plaintiff seeks reimbursement for all work done on the case, including work relating to the state law claims. Similarly, several time entries in Greenwald's affidavit relate to photographs that were held to be unprotected under the Act.[6] Section 412(2) of the Act provides, in pertinent part, that
"no award of ... attorney's fees, as provided by sections 504 and 505, shall be made for ... any infringement of copyright commenced after first publication of the work and before the effective date of its registration" 17 U.S.C. § 412(2).
The court finds and concludes that plaintiff should only recover expenses for work done on the meritorious copyright infringement claims. See, Knitwaves v. Lollytogs, 71 F.3d 996, 1012 (2nd Cir.1995) (vacating district court's award of attorney's fees for infringing acts committed prior to registration of copyright). However, Greenwald's affidavit fails to adequately specify which tasks relate to which claims.[7]

*418 C. Limited Success Is a Factor in Determining Attorney's Fees under the Act
""[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees" so that "where the plaintiff only achieves limited success, the district court should only award that amount of fees that is reasonable in relation to the results achieved" Childress v. Taylor, 835 F.Supp. 739, 742 (S.D.N.Y.1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). In this case, plaintiff dismissed two of his four causes of action against defendants and only recovered a modest statutory damage award of $1000, far less than plaintiff's request of $200,000. In addition, the court found the two infringements not to be wilful, which would have aggravated the damage award. Injunctive relief was not awarded because the court determined that defendants' actions in removing Scanlon's photographs from their Internet site "indicated an intention not to violate Scanlon's rights in the future" Scanlon, 11 F.Supp.2d at 448.
Therefore, in light of plaintiff's limited success and to account for these vague and duplicative time entries, the court reduces the lodestar figure for attorney's fees by two-thirds (67%). See, e.g., New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983) (noting that various courts "have endorsed percentage cuts as a practical means of trimming fat from a fee application"); Robinson v. Bantam Books, Inc., 339 F.Supp. 150 (S.D.N.Y. 1972) ("[S]ome attention may be given to the time spent by an attorney, [but] it is not determinative.... The real test is not time spent but results accomplished"); Agee v. Paramount Comm., 869 F.Supp. 209, 212-13 (S.D.N.Y.1994) ("It is well settled law that in copyright infringement cases, the courts evaluate the amount of work and skill involved and the result achieved to determine attorney's fees").

III. Plaintiff's Application for Costs
Similarly, the court finds plaintiff's application for costs to be vague and duplicative. Greenwald's affidavit included expenses for expedited mailing and courier services like Federal Express and various transportation costs. Yet, he did not detail or explain the reasons why these special services were used. All the parties in this action live in New York. The court fails to see why transportation costs or special mailing costs should be reimbursed. Other noncompensable, vague entries include "brief costs," "trial supplies," and "court reporting/deposition." Greenwald also neglected to itemize the costs to show which costs are associated with which of plaintiff's claims.
Furthermore, plaintiff is seeking reimbursement for electronic legal research on LEXIS. The court finds that such expenses are duplicative and hence, not recoverable. "Computer research is merely a substitute for an attorney's time that is compensable under an application for attorneys' fees and is not a separately taxable cost" U.S. v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir.1996); see also, U.S., ex rel Coughlin v. I.B.M. Corp., 992 F.Supp. 137, 145-46 (N.D.N.Y.1998) ("the cost of electronic computer research is not recoverable in a motion for attorney's fees and costs").
Since the entries for disbursements are too vague for the court to assess the reasonableness of the costs, the court reduces plaintiff's application for costs by two-thirds (67%). Thus, the court finds and concludes that plaintiff's application for costs is granted in the amount of $1939.52.

CONCLUSION
For the reasons set forth above, the court finds and concludes that plaintiff's application for attorney's fees is granted in the amount of $1897.50.[8] The court finds that plaintiff's application for costs is granted in the amount of $1939.52.[9] The court further holds that *419 defendants' request for attorney's fees and costs is denied.
SO ORDERED.
NOTES
[1]  Section 505 of the Act reads, in pertinent part, as follows:

"In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party.... The court may also award a reasonable attorney's fee to the prevailing party as part of the costs" 17 U.S.C. § 505.
[2]  Although plaintiff introduced Certificates of Registration for six photographs at trial, plaintiff only pursued infringement claims on two photographs, "Suspension" and "Pinned." In the court's July 9th Opinion, it made a finding of fact that three of the other six photographs entitled "Sitting Flame," "Standing Flame," and "Convergence" were not protected under the Copyright Act because they were not registered at the U.S. Copyright Office when the infringements began. See, Scanlon, 11 F.Supp.2d at 446-47. However, defendants did not prevail as to these two photographs because plaintiff did not allege that defendants violated his copyright as to them.
[3]  In 1994, Greenwald graduated cum laude from New York University School of Law and was a member of its law review for two years. Prior to forming his own firm, Greenwald spent one year as a junior associate at Watchell, Lipton, Rosen, and Katz, a major New York law firm. During his time at Watchell, he was involved in a limited number of copyright cases. Therefore, the court finds that although Greenwald's academic achievements are impressive, his lack of actual litigation experience in this field prevents this court from awarding him the rate requested.
[4]  See, Exh. C, Defendant's Amended Reply to Plaintiff's Counsel Fee Application.
[5]  Plaintiff's defamation claim is still pending.
[6]  The following entries are examples of work relating to unprotected, and hence non-compensable, acts of infringement under the Act:

Date          Hrs.
 4/10/97      2.4
 6/24/97      1.3
 7/14/97      5.4
 8/19/97       .3
 8/23/97       .3
 8/25/97       .4
 8/26/97       .2
10/25/97      3.8
10/26/97      2.1
10/28/97      2.8
11/5/97       2.8
11/5/97       1.7

[7]  Examples of some ambiguous entries from Greenwald's affidavit include the following:

Date       Entry                               Hours
4/10/97    Letter to Paul O'Dwyer               1.2
           Re: Defamation and Copyright
4/10/97    Letter to Paul O'Dwyer                .4
           Re: Defamation and Copyright
5/14/97    Draft Chris Scanlon Affidavit         .4
5/29/97    Letter to Paul O'Dwyer                .5
           Re: Discovery
6/23/97    Ltr to Paul O'Dwyer                   .7
           Re: Discovery & web site
7/1/97     Ltr to Paul O'Dwyer                   .6
           Re: Discovery
8/8/97     Research cases; draft                8.9
           Re: motion to dismiss
8/14/97    Draft Mem of Law                    13.8
           Re: Motion to dismiss
8/14/97    Draft Chris Scanlon                  1.4
           Affidavit

[8]  The court reached this figure by calculating the lodestar figure for plaintiff's counsel (46 hours × $125/hr= $5750) and reducing it by 67%.
[9]  This figure represents plaintiff's original request for costs ($5877.34) less the two-thirds deduction (67%).


                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1758
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Western District of Missouri.
Duane D. Hill,                       *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: October 13, 2005
                                Filed: December 8, 2005
                                 ___________

Before LOKEN, Chief Judge, LAY, and BENTON, Circuit Judges.
                              ___________

LAY, Circuit Judge.

       Duane D. Hill entered a conditional plea of guilty to unlawful possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), after the district court1
denied his motion to suppress firearms seized from his home. Hill appeals the denial
of his motion to dismiss. We affirm.

      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable John
T. Maughmer, Chief United States Magistrate Judge for the Western District of
Missouri.
                                            I.

       On the morning of March 19, 2004, a task force of Kansas City Police
Department officers and FBI agents conducted surveillance on the home of Duane D.
Hill in order to execute an arrest warrant for Hill on charges of aggravated robbery.
At approximately 7:00 a.m., the officers observed Hill exit his residence and place
trash on the curb. The officers then arrested Hill as he was opening the door to the
screened-in porch of his home.

        While other officers arrested Hill, Detective Jeffrey Wishard of the Kansas City,
Missouri Police Department observed a woman, later identified as Hill’s wife, and
another man standing in the entryway of the residence. Detective Wishard watched
the man look outside the house at the law enforcement officers and then run back into
Hill’s residence. Detective Wishard pulled open the door to the entryway where Hill’s
wife was standing and asked her who else was in the house. She replied that no one
else was there, which Detective Wishard knew to be untrue. Detective Wishard drew
his gun and quickly entered the house. He found the unidentified man flushing the
toilet in the bathroom. Detective Wishard removed the man from the bathroom and
placed him in the hallway.

      From his position in the hallway, Detective Wishard could see a shotgun
leaning against a wall at the bottom of a stairway. Other officers entered to conduct
a protective sweep to make sure no one else was in the home. Detective Wishard
located a handgun in plain view on the nightstand in the same downstairs room as the
shotgun. Other officers found an AK-47 assault rifle with 30 rounds of ammunition
leaning against a closet wall in plain view in the upstairs bedroom.

        After being indicted by a grand jury for being a felon in possession of a firearm,
Hill filed a motion to suppress, arguing that the evidence against him was obtained in
violation of his Fourth Amendment right to be free from unreasonable searches of his

                                           -2-
home. The magistrate judge conducted an evidentiary hearing and issued a report and
recommendation holding that the search of Hill’s home was justified by exigent
circumstances. The district court adopted this report and recommendation and Hill
entered a conditional guilty plea reserving the right to appeal the denial of the motion
to suppress. Hill now appeals, arguing that his house was entered, and the firearms
seized, in violation of his Fourth Amendment rights. We hold that the entry into
Hill’s home was justified by exigent circumstances, and therefore affirm.

                                          II.

       The Fourth Amendment protects “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. As explained by the Supreme Court, “the Fourth Amendment
has drawn a firm line at the entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445
U.S. 573, 590 (1980). However, a “legitimate concern for the safety” of law
enforcement officers or other individuals constitutes exigent circumstances that justify
warrantless entry. United States v. Vance, 53 F.3d 220, 222 (8th Cir. 1995); United
States v. Antwine, 873 F.2d 1144, 1147 (8th Cir. 1989). “When there is a reasonable
fear of harm, a warrantless entry may be justified.” United States v. Williams, 633
F.2d 742, 744 (8th Cir. 1980).

        We believe that Detective Wishard had a legitimate and reasonable concern for
the safety of Hill and the officers present, and therefore exigent circumstances
justified the entry of Hill’s home. Detective Wishard testified that he would not have
entered the house had he not seen the unidentified man running back inside the
residence. He further testified that, in light of the aggravated robbery charges, he
assumed there may have been weapons in the residence and was concerned that the
unidentified man could have been going for a weapon. Detective Wishard testified

                                          -3-
that the sole reason for entering the residence was to ensure officer safety and the
safety of Mr. Hill.

       When evaluating the reasonableness of Detective Wishard’s concerns, we agree
with the district court that United States v. Vance, supra, is instructive. In Vance, a
combined group of local law enforcement officers and FBI agents arrested the
defendant on four outstanding warrants. During the defendant’s arrest outside the
back door of the residence, another man appeared at the open door wearing only his
underwear. When an officer asked the man for identification, the man replied that it
was inside and then began to retreat into the residence. The officer stated that he was
coming in as well. Once inside, the officer asked the unidentified man for the
defendant’s guns and the man directed the officer to their location.

        The defendant was indicted as a felon in possession of a firearm and challenged
the warrantless entry of his residence. The court found that the warrantless entry was
justified on safety grounds. Vance, 53 F.3d at 222. The officer’s safety concerns were
reasonable because he had been briefed beforehand that there were other individuals
and weapons in the house, and he could have reasonably feared that the unidentified
man was entering the house to obtain a weapon. Id.

       Hill argues that Vance is distinguishable due to the pre-arrest briefing that
informed officers of the exigency in that case. We find this argument to be
unpersuasive. The unexpected nature of the exigency in this case does not make the
safety concerns any less compelling. Unexpected and dangerous events that arise
during an arrest can create exigent circumstances that justify law enforcement officers
entering a residence in order to protect themselves from any additional and unknown
threats. See United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003) (holding
that officers’ concerns for their safety justified the warrantless entry of a residence
after a man resisted arrest outside the residence, a woman ran down the driveway

                                         -4-
screaming at officers, another woman stood in the doorway of the residence, and the
officers knew there might be a drug lab in the residence).

        While the law enforcement officers in Vance had advance notice that the
defendant’s arrest could be dangerous, the unknown man was compliant and spoke
with the police. In this case, the unidentified man was not under an officer’s control
and ran back into the house after seeing the police. Moreover, when questioned by
Detective Wishard, Mr. Hill’s wife denied the unidentified man’s presence. These
facts, in addition to the violent crime for which Hill was being arrested and the likely
presence of weapons, all contributed to Detective Wishard’s reasonable concerns for
the safety of Hill and the officers present.

       Therefore, we hold that Detective Wishard’s warrantless entry into Hill’s home
was justified due to exigent circumstances. Once inside, the officers could lawfully
seize the firearms located in plain view inside the residence. Coolidge v. New
Hampshire, 403 U.S. 443, 465 (1971).

                                          III.

      For the foregoing reasons, we affirm the decision of the district court.
                      ______________________________

                                          -5-


82 F.3d 520
UNITED STATES of America, Appellee,v.Alexander MONTANEZ, a/k/a Armando Bareta, Carlos Lopez,Defendant, Appellant.
No. 95-2096.
United States Court of Appeals,First Circuit.
Heard March 6, 1996.Decided April 24, 1996.

Appeal from the United States District Court for the District of Massachusetts;  Hon.  Mark L. Wolf, U.S. District Judge.
Evan Slavitt with whom Kelley A. Jordan-Price and Hinckley, Allen & Snyder were on brief by appointment, Boston, MA, for appellant.
Geoffrey E. Hobart, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for the United States.
Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
BOUDIN, Circuit Judge.

1
The sole issue on this appeal is whether the district court erred in denying Alexander Montanez the benefit in sentencing of the recently enacted "safety valve" provision which relates to mandatory minimum sentences.  18 U.S.C. § 3553(f);  see U.S.S.G. § 5C1.2.   We readily conclude that there was no error in this case.   But in light of the far-reaching interpretation of the statute urged by the government, something more than a per curiam affirmance is required.

2
Montanez and three others were arrested in May 1994, after Montanez had aided in five drug sales to undercover agents.   Montanez' role was limited to delivering the drugs and collecting the purchase money.   He was charged with conspiring to distribute drugs, 21 U.S.C. § 846, and with five substantive counts of possession with intent to distribute, each relating to a different drug sale, 21 U.S.C. § 841.   On January 26, 1995, Montanez pleaded guilty to all counts.

3
On June 2, 1995, the district court held a sentencing hearing.   Montanez protested that the government's latest computation of drug quantity, if accepted, triggered a mandatory five-year minimum sentence under the statute, 21 U.S.C. § 841(b)(1)(B)(i).   Montanez said that he had not been warned of this possibility at the time that he pleaded guilty.   The district court continued the sentencing hearing to June 19, 1995, offering Montanez the opportunity to withdraw his plea.

4
Instead of withdrawing his plea, Montanez filed a supplemental memorandum on June 9, 1995, asking the court to apply the new safety valve provision of 18 U.S.C. § 3553(f).   That provision requires the district court to disregard the statutory mandatory minimum if the court finds at sentencing that five conditions have been met.   Four, concededly met in this case, concern the defendant's prior history and the nature of the crime.   The fifth finding is that:

5
[N]ot later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

6
On the same date, June 9, 1995, Montanez' counsel sent the assistant United States attorney an eight-page letter setting forth what purported to be Montanez' "information" concerning the crimes charged in the case.   The letter contained a good deal of detail about the crimes, but the detail came as no surprise to the prosecutor.   With minor word changes, and not many of these, defense counsel's letter was drawn almost verbatim from an affidavit filed by one of the federal agents early in the case.

7
The government filed a response, arguing inter alia that the letter was plainly insufficient and pointing to various pieces of information that Montanez had not disclosed such as how he obtained the heroin involved in several of the five transactions, where it was stored, and who was the supplier.   This information was not contained in the government affidavit or in Montanez' letter to the prosecutor.   Montanez made no reply to this filing.

8
At the sentencing hearing on June 19, 1995, the district court ruled that it did not find that Montanez had truthfully provided to the government all information and evidence that he possessed.   The court said that it thought that Congress had intended the safety valve for defendants who tried to cooperate by being debriefed by the government. But, said the court, it would "cheerfully" have given Montanez the benefit of the safety valve if Montanez had just come into court "and said everything he knew and persuaded me that was everything he knew....  But he hasn't."

9
In due course, the district court imposed the mandatory minimum sentence and Montanez now appeals.   He argues that no debriefing requirement exists and, in addition, that defense counsel's June 9 letter complied with the statutory requirement.   The government argues that a debriefing is required but, in the alternative, says that the district court properly found that Montanez had not made the required disclosure in any form.

10
It is easy to understand why the government wants the statute construed to impose a requirement that a defendant offer himself to the prosecutor for a debriefing.   If a defendant does have useful information, it can best be extracted and preserved in that setting.   And a debriefing also puts the government in the best position to decide whether it thinks that the defendant is telling everything he knows and, if it believes otherwise, to argue to the court that the safety valve provision should not be applied.

11
But the issue before us is whether the statute requires the defendant to offer himself for debriefing as an automatic pre-condition in every case, and it is hard to locate such a requirement in the statute.   All that Congress said is that the defendant be found by the time of the sentencing to have "truthfully provided to the Government" all the information and evidence that he has.   Nothing in the statute, nor in any legislative history drawn to our attention, specifies the form or place or manner of the disclosure.

12
The government's best argument turns on the relationship of the safety valve statute to the preexisting provisions for a substantial assistance departure.   From the outset, a departure below the statutory minimum sentence has been allowed where the prosecutor moves the court for such a departure on the ground that the defendant has furnished substantial assistance to the government.  18 U.S.C. § 3553(e);  U.S.S.G. § 5K1.1.   The decision to move, with few qualifications, is committed to the prosecutor's discretion.  Carey v. United States, 50 F.3d 1097, 1101 (1st Cir.1995).

13
As the Seventh Circuit compactly explained in a recent decision, Congress discovered that substantial assistance may commonly be available from highly culpable drug-ring organizers but often not from less culpable street dealers or "mules" who merely transport drugs.  United States v. Arrington, 73 F.3d 144, 147-48 (7th Cir.1996).   To cope with this situation, section 3553(f) was enacted in 1994.   It rewards low level offenders who meet the other conditions specified (e.g., non-violence, little criminal history) and who truthfully provide all of the information and evidence they have, even if it does not prove useful.  Id. at 147.

14
Montanez seeks to contrast the preexisting substantial assistance statute with the new safety valve statute, arguing that the former is concerned with cooperation, but the latter only with culpability.   While there are mechanical differences between the statutes, see United States v. Acosta-Olivas, 71 F.3d 375, 379 (10th Cir.1995), both values were probably of concern to Congress in drafting section 3553(f).   In enacting the safety valve provision, we think Congress was aiming its leniency at low level defendants who did their best to cooperate to the extent of making full disclosure.1  Such disclosure may prove to be of use even if it does not amount to "substantial assistance."

15
Section 3553(f) could easily have required a debriefing;  certainly that would have provided a brighter line than merely to require that the defendant "truthfully provide [his information and evidence]" in some unspecified form.   But the fact remains that Congress wrote the statute as it did.   Courts can and do apply restrictive glosses on statutory language, but everything depends on the breadth of the linguistic leap and strength of the arguments for making it.   Here, we think that Congress' own formulation is adequate to achieve its ends.

16
Courts have thus far found it fairly easy to cull serious efforts at full disclosure from mere pretense.   This court in Wrenn, 66 F.3d at 3, readily dismissed a defendant's claim that the necessary disclosure was achieved when the government covertly taped him in the course of the criminal venture;  and another circuit only recently rejected a claim that a defendant had made the necessary disclosure through a routine interview with his probation officer.  United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 542, 133 L.Ed.2d 446 (1995).

17
As a practical matter, a defendant who declines to offer himself for a debriefing takes a very dangerous course.   It is up to the defendant to persuade the district court that he has "truthfully provided" the required information and evidence to the government.  United States v. Flanagan, 80 F.3d 143, 145-47 (5th Cir.1996).   And a defendant who contents himself with a letter runs an obvious and profound risk:  The government is perfectly free to point out the suspicious omissions at sentencing, and the district court is entitled to make a common sense judgment, just as the district judge did in this case.

18
Of course, nothing prevents a district court from deciding that it is unpersuaded of full disclosure, cf. Rodriguez, 60 F.3d at 195, but might be if the defendant submitted himself to a debriefing.   Yet such a determination would rest in the hands of the judge, not the prosecutor.   The possibility remains, however rare, that a defendant could make a disclosure without a debriefing (e.g., by letter to the prosecutor) so truthful and so complete that no prosecutor could fairly suggest any gap or omission.

19
To suggest this course as a possibility is not to encourage it.   A defendant whose only concern is to secure the benefit of the safety valve provision should be anxious for a debriefing.   It offers an occasion to persuade the government that the defendant has made full disclosure and thus to win its "recommendation" for avoiding the mandatory minimum.   U.S.S.G. § 5C1.2 comment (n.8).   If the government still opposes the departure, the defendant can say to the judge that the government had a chance to ask everything it wanted.

20
Defendants often have reasons, such as loyalty to a confederate or fear of retribution, for not wanting to make full disclosure.   But full disclosure is the price that Congress has attached to relief under the statute, and the burden remains on the defendant to prove his entitlement.  Flanagan, 80 F.3d at 146-47.   Defendants will discover soon enough that there is little mileage in gambits designed to qualify the defendant for relief while avoiding full disclosure.

21
This case is a good illustration of a bad gambit.   In theory full disclosure might exist where a defendant's letter recited back to the government, in virtually the government's own words, the information already possessed by the government and nothing more.   But in practice this is hardly likely, especially where several different drug transactions and multiple players are involved.   Here--merely to mention the most conspicuous omission--Montanez' letter does not disclose as to several of the transactions who provided him with the drugs he delivered.

22
It is enough that Montanez did not disclose information that he might reasonably be expected to possess, nor persuasively explain its absence.   See Wrenn, 66 F.3d at 3.   The failure to disclose is so patent in this case that no reason exists for extended discussion.   Indeed, even on appeal Montanez offers no plausible reason why he could not have provided such information as the identity of each seller.   The district court did not "clearly err" in finding that the fifth requirement was unsatisfied.  Rodriguez, 69 F.3d at 144.

23
Montanez now argues that he ought to have been given an evidentiary hearing on the question whether he had made full disclosure.   But he did not request such a hearing in the district court and that largely disposes of his claim.  United States v. Gertner, 65 F.3d 963, 969 (1st Cir.1995).   Even on appeal Montanez does not suggest what testimony he could have offered to show that he had made full disclosure.   On the present facts, a conclusory statement by Montanez on his own behalf would never have been credited.

24
Montanez might have made a different but related claim on appeal, namely, that the district judge should have given him a second chance to make full disclosure after finding that his June 9 letter was inadequate.   But this claim would also be foreclosed by the failure to ask the district court for such an opportunity.   We add, by way of warning, that defendants who make partial disclosure as an opening bid are engaging in a risky gamble.   Here there was no serious effort at any disclosure.

25
Affirmed.

1
 United States v. Wrenn, 66 F.3d 1, 3 (1st Cir.1995);  United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir.1996);  Acosta-Olivas, 71 F.3d at 379;  United States v. Rodriguez, 69 F.3d 136, 143 (7th Cir.1995)