354 F.Supp. 185 (1973)
Louis FUERST, et al., Plaintiffs,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
No. 70 Civ. 5757.
United States District Court, S. D. New York.
February 14, 1973.
Abraham M. Spilky and Robert M. Spilky, Brooklyn, N. Y., for plaintiffs.
Joseph P. Marro, Asst. U. S. Atty., New York City (Whitney North Seymour, U. S. Atty., of counsel), for defendant.

MEMORANDUM
BAUMAN, District Judge.
This is an action brought under § 205(g) of the Social Security Act, 42 U. S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare denying plaintiffs disability benefits under 42 U.S.C. §§ 416(i) and 423. Both sides have moved for summary judgment, and I am satisfied that there is no genuine issue of material fact to be tried.
The claimant, Leah Fuerst, was born on April 12, 1939. After her college graduation she was employed as a full time teacher from 1960 to 1963. Starting in September, 1964 she taught part time only, in order to give greater attention to her children, the first of whom had been born in 1963 and the second in *186 1964. (Tr. 52).[1] She held her last position, as a Hebrew teacher at the Prospect Heights Jewish Center High School, from September, 1967 to April 30, 1969, earning during the latter school year between $190 and $197 per month.
Early during the 1968 summer recess, Mrs. Fuerst was admitted to the James Ewing Hospital, New York City, with carcinoma of the left breast and a radical mastectomy was performed. Some two weeks later she was discharged from the hospital, but her fate seems by then to have been sealed.
On May 7, 1969, Mrs. Fuerst was admitted to the Beth Israel Medical Center for further surgery where a bilateral oophorectomy[2] and a bilateral adrenalectomy[3] were performed. She was discharged on June 6, 1969 with the recommendation that she undergo cobalt therapy. (Tr. 60-62).
Mrs. Fuerst's treating physician noted in a report dated November 11, 1969, that she had not responded to the second operation, and stated that she was totally disabled. She died on June 2, 1970.
The Fuerst family's journey through HEW's bureaucratic maze began October 30, 1969, when Mrs. Fuerst filed an application for the establishment of a period of disability and for disability insurance benefits alleging that she had become unable to work that April. Her application was granted and her period of disability was found to commence on May 2, 1969. She then filed a request for reconsideration on December 19, 1969, asking that her disability starting date be fixed in June, 1968, following her first operation. Some functionary gifted with a combination of divine guidance and a computerized mind moved the onset date of her disability from May 2 to April 30, 1969.
Mrs. Fuerst then sought, on April 4, 1970, to have her application reviewed de novo by a hearing examiner of the Department's Bureau of Hearings and Appeals. Acting with all deliberate speed the hearing was held in August, 1970, by which time she had died, and her husband made a brief presentation at the hearing. On September 9, 1970, the hearing examiner's decision fixed the onset date at June 15, 1968. Although the amount involved was $3,000, the Appeals Council of the Department, jealous guardians of the public purse, on its own motion decided that such action required review. On November 4, 1970, it reversed the hearing examiner and established the onset date as April 30, 1969. This decision is the final decision of the Secretary of Health, Education and Welfare of which review is sought here.
Unfortunately, the sole question before this Court is whether the decision of the Secretary fixing the onset date of the disability is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Gold v. Secretary of HEW, 463 F.2d 38 (2nd Cir. 1972); Franklin v. Secretary of HEW, 393 F.2d 640 (2nd Cir. 1968); Kerner v. Flemming, 283 F.2d 916 (2nd Cir. 1960).
The relevant provisions of 42 U. S.C. § 423, set out in the margin,[4] state, *187 in essence, that a claimant must meet a twofold test in order to qualify for disability benefits. First, he must demonstrate a "medically determinable physical or mental impairment,", and second, he must show that this impairment prevents him from engaging in substantial gainful activity. See Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Harris v. Richardson, 450 F.2d 1099 (4th Cir. 1971).
It is undisputed that breast cancer, from which the claimant died less than two years after its first diagnosis, is a medically determinable impairment.[5] Nevertheless, it is well settled that if a person works during the so-called period of disability rather than just sitting waiting for death, this may demonstrate a capacity to engage in substantial gainful employment in spite of the medical evidence. See Simmons v. Celebrezze, 362 F.2d 753 (4th Cir. 1966); 20 C.F.R. § 404.1532(a). For example, in Price v. Richardson, 443 F. 2d 347 (5th Cir. 1971), the claimant suffered from terminal cancer for five years prior to his death. Although he was unable to engage in strenuous physical activity, he came to work six days a week, and supervised the daily operations of the meat processing business he owned. The Court thus found that even though he bore the burden of a terminal illness, the claimant was engaged in substantial gainful activity. Consequently, in the case at bar, a mere demonstration of the gravity of Mrs. Fuerst's affliction does not entitle her to disability benefits.
In light of the circumstances of this claimant's employment, I am constrained to find that during the year in dispute she was engaged in substantial gainful activity. In reaching such a conclusion I need not rely on the provision of 20 C.F.R. § 404.1534(b),[6] promulgated pursuant to 42 U.S.C. § 423(d)(4),[7] which states that earnings in excess of $140 per month are deemed to demonstrate a capacity to engage in substantial gainful activity. There has been considerable confusion over the precise meaning of the "unless" clause in that regulation; see Hedge v. Richardson, 458 F.2d 1065 (10th Cir. 1972) and Wilson v. Richardson, 455 F.2d 304 (4th Cir. 1972). But in deciding this motion I need not reach the question of whether Mrs. Fuerst's work falls within that ill defined exception or whether her salary of at least $190 per *188 month in 1968-1969 school year in itself precluded her claim.
The plaintiffs' claim here must fail simply because there is no evidence that the work in which Mrs. Fuerst engaged prior to June 26, 1968 differed in any respect from the work she did in the following school year. Since 1964 she had taught on a part time basis, and continued to do so in 1968-1969. Actually, her teaching load was heavier at the Prospect Heights Jewish Center in 1968-1969 than it had been in the previous year. Her Work Activity Report (Tr. 45-48) indicates that in 1967-1968 she taught 50 minutes per day, 4 days per week, and that in 1968-1969 she taught more than twice that  100 minutes per day, 5 days per week. The language of 42 U.S.C. § 423(d) (2) (A), supra at footnote 4, suggests that a disability claimant must at the very least be unable to engage in his previous work. All of the reported cases, moreover, uphold this threshold requirement. Carden v. Gardner, 352 F.2d 51 (6th Cir. 1965); Mark v. Celebrezze, 348 F. 2d 289 (9th Cir. 1965); Alsobrooks v. Gardner, 357 F.2d 110 (5th Cir. 1966); Hicks v. Flemming, 302 F.2d 470 (5th Cir. 1962).
I am not confronted here, as in Carden, with a mere theoretical capacity to engage in a former occupation; Mrs. Fuerst did in fact continue to teach as she had for the previous five years. Although we cannot know her psychological motivation for going on or the agonies she suffered in that last year, there is thus no evidence that she was "disabled" by her affliction as that word has come to be defined. In evaluating the extent of a disability, courts may properly look to a claimant's physical and mental capacity to adapt to impairments (see Boozer v. Celebrezze, 238 F.Supp. 701 (W.D. South Carolina 1964); Ollis v. Ribicoff, 208 F.Supp. 644 (W.D. North Carolina 1962)), but not to his courage and will to go on serving to the end. The Court cannot help but feel that something is wrong here  that the HEW rules would have been incorporated in a Kafka novel had they existed then. But the remedy must be provided by an agency with a heart or the Congress  not by the Courts.
In their moving papers claimants virtually concede that Mrs. Fuerst's activities failed to meet the statutory standard. They argue instead that her work in 1968-1969 cannot be deemed substantial gainful activity because it was primarily therapeutic. They contend further that the Appeals Council failed to consider a letter by Mrs. Fuerst's physician, Dr. Joseph Farrow, that he had recommended that she return to work for psychological reasons. Whether or not the Council considered the letter is, as the law stands, immaterial. Only one case, Prevette v. Richardson, 316 F. Supp. 144 (D. South Carolina 1970), can reasonably be invoked to support it, and even that case is distinguishable. In Prevette the claimant who was suffering from arteriosclerotic heart disease had testified that he worked because it provided an outlet for his energies and was essentially therapeutic. There is no indication, however, that this factor was dispositive; the Court found that the claimant could work no more than two or three hours at irregular intervals and held, quite properly, that this did not constitute substantial gainful activity. I can therefore find no authority, either in the statute or the reported cases, to support plaintiffs' argument, and I must reject it.
I therefore find that the Secretary's decision was supported by substantial evidence. Accordingly, plaintiffs' motion for summary judgment is denied, and defendant's motion for summary judgment is granted. Defendant's application for costs and disbursements is denied.[8]
It is so ordered.
NOTES
[1]  References preceded by "Tr." refer to the Certified Administrative Record filed with this Court.
[2]  Removal of the ovaries.
[3]  Removal of the adrenal glands.
[4]  42 U.S.C. § 423 provides, in pertinent part:

"(a)
(1) Every individual who
(A) is insured for disability insurance benefits (as determined under subsection (c) (1) of this section)
(B) has not attained the age of sixty-five,
(C) has filed application for disability insurance benefits, and
(D) is under a disability (as defined in subsection (d) of this section),
shall be entitled to a disability insurance benefit. . . .
*   *   *   *   *
(d)
(1) The term `disability' means
(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;
*   *   *   *   *
(2) For purposes of paragraph (1) (A)
(A) an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . ."
[5]  Mrs. Fuerst's condition falls within 20 C.F.R. § 404, Subpart P, § 13.00  "Neoplastic Diseases  Malignant."
[6]  20 C.F.R. § 404.1534(b) provides:

"(b) An individual's earnings from work activities averaging in excess of $140 a month shall be deemed to demonstrate his ability to engage in substantial gainful activity unless there is affirmative evidence that such work activities themselves establish that the individual does not have the ability to engage in substantial gainful activity under the criteria in §§ 404.1532 and 404.1533 and paragraph (a) of this section."
[7]  42 U.S.C. § 423(d) (4) provides:

"The Secretary shall by regulations prescribe the criteria for determining when services performed or earnings derived from services demonstrate an individual's ability to engage in substantial gainful activity. Notwithstanding the provisions of paragraph (2), an individual whose services or earnings meet such criteria shall, except for purposes of section 422(c) of this title, be found not to be disabled."
[8]  I must observe, in concluding, that the Government's application for costs and disbursements is at best a thoughtless addendum and at worst a flagrant demonstration of bad taste.


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 01-1939

MICHAEL H. HOLLAND; A. FRANK DUNHAM; MARTY D.
HUDSON; ELLIOT A. SEGAL, as Trustee of the
United Mine Workers of America 1992 Benefit
Plan,

                                             Plaintiffs - Appellees,

          versus

LAKE ENERGY, INCORPORATED, a corporation;
THUNDER MOUNTAIN ENERGY, INCORPORATED, a
corporation,

                                                          Defendants,

          and

CAREY CLINE,

                                             Intervenor - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Elizabeth V. Hallanan,
Senior District Judge. (CA-98-467-2)

Submitted:     February 26, 2002            Decided:   March 11, 2002

Before WILKINSON, Chief Judge, and WIDENER and WILLIAMS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.

Mychal S. Schulz, SCHUMACHER, FRANCIS & NELSON, Charleston, West
Virginia, for Appellant.    David W. Allen, Larry D. Newsome,
Jonathan Sokolow, Christopher F. Clarke, UNITED MINE WORKERS OF
AMERICA HEALTH AND RETIREMENT FUNDS, Washington, D.C., for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

                                2
PER CURIAM:

     Carey Cline appeals from the district court’s order denying

his Fed. R. Civ. P. 60(b) motion for relief from the court’s judg-

ment order directing the West Virginia Commissioner of Labor to

draw on a wage bond to satisfy an unpaid judgment.     We have pre-

viously granted the motion to submit this case for a decision on

the briefs without oral argument.     We now affirm.

     Cline asserts that the district court abused its discretion in

denying his Rule 60(b) motion and that the court did not have the

authority to issue a suggestion order directing the Commissioner of

Labor to draw on the wage bond.   We have reviewed the materials in

the Joint Appendix and the arguments presented in the parties’

briefs and find no abuse of discretion and no reversible error.

See Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997).

Accordingly, we affirm on the reasoning of the district court. See

Holland v. Lake Energy, Inc., No. CA-98-467-2 (S.D.W. Va. June 18,

2001).

                                                           AFFIRMED

                                  3


537 U.S. 1145
PEREZ-MENDOZAv.UNITED STATES.
No. 02-7893.
Supreme Court of United States.
January 13, 2003.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

2
C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 408.


NO. 07-03-0202-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 11, 2003

______________________________

HEATHER LYNNE QUEEN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

NO. 2955; HONORABLE DAVID M. MCCOY, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	Appellant Heather Lynne Queen filed a Motion to Dismiss Appeal on September 10,
2003, averring that she no longer wishes to prosecute her appeal.   The Motion to Dismiss
is signed by both appellant and her attorney.
	Without passing on the merits of the case, appellant's motion for voluntary dismissal
is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.2.   Having dismissed

the appeal at appellant's personal request, no motion for rehearing will be entertained and
our mandate will issue forthwith.

							Phil Johnson
						    	Chief Justice

Do not publish.

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NO. 07-06-0431-CR
                                                     NO. 07-06-0432-CR
                                                     NO. 07-06-0433-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MARCH 25, 2008

______________________________

CLIFFORD EUGENE OSBORN,

                                                                                Appellant

v.

THE STATE OF TEXAS,

                                                                                Appellee

_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NOS. 17,126-C;17,127-C;18,231-C; HON. PATRICK PIRTLE, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          After a jury trial, Clifford Eugene Osborn was convicted of robbery, aggravated
kidnaping, and unauthorized use of a motor vehicle.  After finding the enhancements true,
the jury assessed punishment at life for the robbery conviction, life for the aggravated
kidnaping, and twenty years for the unauthorized use of a motor vehicle.
          Appellant’s appointed counsel has filed a motion to withdraw, together with an
Anders
 brief, wherein he certifies that, after diligently searching the record, he has
concluded that appellant’s appeals are without merit.  Along with his brief, he has filed a
copy of a letter sent to appellant informing him of counsel’s belief that there was no
reversible error and of appellant’s right to file a pro se brief or response.  By letter dated
December 31, 2007, this court also notified appellant of his right to file his own brief or
response by January 30, 2008, if he wished to do so.  After requesting and receiving an
extension of time, appellant filed a response wherein he contends 1) the trial court erred
in refusing to grant the motion to suppress his statement, and 2) he was denied his right
to counsel and meaningful access to the courts.

          In compliance with the principles enunciated in Anders, appellate counsel discussed
several possible issues for appeal: 1) the sufficiency of the evidence to sustain the
convictions, 2) the denial of motions to suppress appellant’s statement and his
identification, 3) the sufficiency of the evidence to support a finding of “true” to the
enhancement paragraphs during the punishment phase, 4) the appropriateness of the
punishments assessed, and 5) the effectiveness of counsel.  However, appellate counsel
has explained why each argument lacks merit.
          We have also conducted our own review of the record to assess the accuracy of
appellate counsel’s conclusions and to uncover any reversible error pursuant to Stafford
v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).  Our review has failed to reveal
reversible error.
          Accordingly, the motion to withdraw is granted and the judgments are affirmed.

                                                                           Brian Quinn
                                                                         Chief Justice

Do not publish.


750 F.Supp.2d 70 (2011)
Oscar SALAZAR, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 93-452(GK).
United States District Court, District of Columbia.
January 4, 2011.
April Isabel Land, University of New Mexico, Albuquerque, NM, Bruce J. Terris, Kathleen Lillian Millian, Elisabeth J. Lyons, Terris, Pravlik & Millian, LLP, Paula D. Scott, Public Defender Service for the District of Columbia, Washington, DC, Robert I. Berlow, Crownsville, MD, Lynn E. Cunningham, DuBois, WY, Zenia Sanchez Fuentes, Carrboro, NC, for Plaintiffs.
Alan S. Block, Bonner, Kiernan, Treback & Crociata, Charles Luverne Reischel, Arabella W. Teal, Marceline D. Alexander, Office of Corporation Counsel, D.C., *71 Ellen A. Efros, Nancy S. Schultz, Office of the Attorney General, Peggy Massey, Department of Human Services, Office of General Counsel, Robert C. Utiger, DC Attorney General, Wanda Tucker, Department of Health, Allen Vern Farber, James Aston Barker, Drinker Biddle & Reath LLP, James L. Feldesman, Feldesman Tucker Leifer Fidell LLP, Andrea R. Calem, Epstein Becker & Green, P.C., Wayne Chester Witkowski, Office of the Attorney General, Washington, DC, Jane Perkins, National Health Law Program, Chapel Hill, NC, for Defendants.

MEMORANDUM OPINION
GLADYS KESSLER, District Judge.
Plaintiffs have filed a Motion for an Award of Litigation Costs, Including Attorneys' Fees and Expenses, for July Through December 2007 and for 2008. They seek a total of $1,010,438.12 for this work. Upon consideration of the Motion, the Opposition, the Reply, and the extensive record in this case, the Court concludes that the Motion should be granted in part and denied in part.[1]
Paragraph 64 of the Settlement Order entered January 25, 1999, provides that Plaintiffs' counsel shall be paid $75 an hour for handling the claims of individual class members, regardless of the experience level of the lawyer who performs the work. "This hourly rate shall be adjusted annually, beginning on January 1, 1999, based on the U.S. Department of Commerce Consumer Price Index for Legal Services" ("National Legal Services CPI").
Paragraph 65 of the Settlement Order provides that Plaintiffs' counsel shall be paid at the rates of $315 an hour for the time of Bruce J. Terris and Lynn Cunningham, and $265 an hour for the time of Kathleen L. Millian and Jane Perkins, for monitoring Defendants' Compliance with the Settlement Order. Reasonable paralegal time shall be compensated at the rate of $75 an hour. "These hourly rates shall be adjusted annually, beginning on January 1, 1999, based on the U.S. Department of Commerce Consumer Price Index for legal services."
Paragraph 66 of the Settlement Order states that "the parties do not intend these rates [in Paragraphs 64 and 65] to apply for any purpose other than those set forth in [those paragraphs]."
As to work not specifically covered by Paragraphs 64 and 65, this Court ruled on October 30, 2000, that the Laffey matrix rates, which had been upheld by our Circuit,[2] should be updated by application of the National Legal Services CPI rather than the D.C. All-Items CPI. Salazar v. D.C., 123 F.Supp.2d 8, 11-15 (D.D.C.2000) ("Legal Fees Opinion").
*72 1. Defendants' primary argument is that the Index used to update the agreed hourly rates specifically set forth in ¶¶ 64 and 65 of the Settlement Order and in determining the appropriate rates for other work described in ¶ 66 of the Order, should be changed. It is a little late for Defendants to be making this argument. This Court decided, way back on October 30, 2000, how attorneys' fees were to be calculated and what Indexes were to be used for updating those calculations as time wore on in implementing the Settlement Order. Salazar, id. In other words, to state the obvious, that decision was issued more than 10 years ago. At least seven Orders and explanatory Opinions awarding attorneys' fees to Petitioners have since been issued. Defendants took no appeal from the 2000 ruling, nor did they ever file a motion for reconsideration and/or modification of the Settlement Order under Rule 60(b) of the Federal Rules of Civil Procedure.
Even if Defendants had filed such a Motion, in a somewhat more timely fashion, they would not have met the requirements of Rule 60(b)(5). First, that Rule requires, that any motion made under Rule 60(b) be made within a reasonable time and "no more than a year after the entry of the judgment or order or the date of the proceeding." Obviously, Defendants have not meet that requirement.
Second, our Court of Appeals has stated clearly that when a settlement agreement is involved, as in this case, Rule 60(b) relief is "an extraordinary remedy, as would be any device which allows a party . . . to escape commitments voluntarily made and solemnized by a court decree." NLRB v. Harris Teeter Supermarkets, 215 F.3d 32, 35 (D.C.Cir.2000).
Third, our Circuit has also emphasized that "[t]he case law makes clear that Rule 60(b)(6) is not an opportunity for unsuccessful litigants to take a mulligan." Kramer v. Gates, 481 F.3d 788, 792 (D.C.Cir.2007). More specifically, the Circuit has said "[r]ule 60(b) . . . cannot be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." So. Pacific Communications Co. v. Am. Tel. & Tel. Co., 740 F.2d 1011, 1017 (D.C.Cir.1984).
Fourth, Defendants also rely upon Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). In Rufo, the Supreme Court "carefully delineated the three conditions under which modification of a consent decree under Rule 60(b)(5) may be appropriate, (1) when changed factual conditions [or law] make compliance with the decree substantially more onerous, (2) when a decree proves to be unworkable because of unforeseen obstacles, or (3) when enforcement of the decree without modification would be detrimental to the public interest." See this Court's extensive discussion of Rufo and Horne v. Flores, ___ U.S. ___, 129 S.Ct. 2579, 2596-97, 174 L.Ed.2d 406 (2009) in Salazar v. D.C., 685 F.Supp.2d 72, 77 (D.D.C.2010). None of these three conditions have been satisfied by Defendants.
In sum, Rule 60(b) cannot form the procedural vehicle for Defendants to now raise this issue, more than 10 years after the Court first ruled on it. Consequently, the law-of-the-case doctrine applies and the original Legal Fees Opinion stands. Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C.Cir.1999); LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc).
2. Turning to the merits, Defendants argue that use of the National Legal Services CPI to update the agreed-upon hourly rates set forth in ¶¶ 64-65 of the Settlement Order and to determine the appropriate rates for other work described in ¶ 66 of the Order, should not be *73 applied because "it is no longer equitable to apply this index and doing so results in paying counsel in this case far more than is necessary to attract competent counsel in fee-shifting complex litigation in the District of Columbia." Defs.' Opp. at 2. In its Legal Fees Opinion deciding this issue, the Court explained at some length why use of the National Legal Services CPI, rather than the updated Laffey matrix, which relies on the D.C. All-Items CPI, should be used. Those reasons still persuade the Court of the correctness of that decision.
Most significantly, the Court still believes that use of the National Legal Services CPI "has the distinct advantage of capturing the more relevant data because it is based on the legal services component of the Consumer Price Index rather than the general CPI on which the U.S. Attorney's Office matrix is based." Salazar, 123 F.Supp.2d at 14-15. As the Court explained in the Legal Fees Opinion, relying upon the explanation of Plaintiffs' expert Dr. Michael Kavanaugh, the D.C. All-Items CPI "does not contain a separate component for legal servicesand that such services are included in a much larger, more generalized category of `other goods and services.'" Id. at 15. Dr. Kavanaugh's explanation makes good sense: "[e]conomists use as specific an index as possible to determine changes in prices in a part of an industry" and therefore "components of the Consumer Price Index are the better tool to use to update an industry's prices rather than the entire Consumer Price Index." Id. Defendants failed to offer any adequate substantive rebuttal to this reasoning back in 2000, and still have no answer to this reasoning.
It is clear that Defendants' main justification for seeking a change in the calculation of the updates of attorneys' fees indexes is the fact that the U.S. Attorney's Office Matrix produces lower rates than use of the National Legal Services CPI. While that justification is certainly understandable from Defendants' perspective, and it is undeniable that the District of Columbia, like so many municipalities throughout the country, faces extremely difficult budgeting decisions because of its revenue shortfalls, that is not an adequate or appropriate reason to change the Index used for updating the Laffey matrix rates for legal services not specified in Paragraphs 64 and 65 of the Settlement Order.
The D.C. All-Items CPI, which Defendants wish to apply, measures the goods and services consumed by ordinary citizens on a regular basis, including food, housing, gas, clothes, etc. While it does include legal services, it is significant that 99.7 percent of that Index includes other consumer items that do not relate to the rate of change in fees for legal services. In contrast, the National Legal Services CPI includes only the rate at which prices change for various kinds of legal services. In addition, while the National Legal Services CPI update does include flat or fixed fees for simple legal services, as Defendants contend, it also includes numerous other activities performed by attorneys, many of which are activities involving complex litigation. In other words, it is a composite of flat fee and hourly rate based services.
Finally, although Defendants are correct that the National Legal Services CPI does include some legal services which are not particularly relevant to the hourly rates for complex federal litigation which are the basis for this fee petition, the totality of legal services included in that Index is clearly far more relevant than the tiny portion of legal services (3 percent) which is included in the D.C. All-Items CPI. As already noted, the D.C. All-Items CPI overwhelmingly considers a whole range of consumer products that have nothing to do with legal services, whereas the National *74 Legal Services CPI involves only legal services, many of which are those involved in complex litigation, including Supreme Court litigation.[3]
The affidavit submitted by Dr. Laura Malowane, Defendants' expert, does not refute the proposition that the National Legal Services CPI remains a more accurate reflection of the actual costs of litigation in the District of Columbia than the D.C. All-Items CPI. Moreover, in her affidavit, Dr. Malowane relies heavily on a series of figures that she identifies as "Billing Rates (Greater Washington, D.C.)." However, she does not identify the source of this data, nor did she provide it, when requested, to Plaintiffs to review. Thus, the Court cannot evaluate the reliability or accuracy of her computations and conclusions.
3. Plaintiffs are requesting $48,538 to prepare for and attend ten of the regularly scheduled informal, but now on-the-record, Status Conferences.[4] Plaintiffs concede that they are requesting approximately $4,800 per Status Conference. While this amount is substantially less than those previously submitted for the same activity, which the Court reduced, the amount is still high given that three attorneys routinely attend these Conferences for Plaintiffs. Therefore, the Court will reduce the total amount of $48,538 by 10 percent.
4. Defendants argue that Plaintiffs have spent an enormous amount of effort and time regarding the manner in which MCOs, in particular HSCSN, make determinations of medical necessity. The Court has already ruled that work on this issue is within the scope of Plaintiffs' duty to monitor the Settlement Order. Plaintiffs are requesting in this fee petition slightly more than $85,000 for litigating the discovery issues, including those regarding HSCSN. The total amount of fee requests made by Plaintiffs for this activity, as of the end of 2009, amount to $174,289.28. Defendants have asked that the $85,000 sought on this issue be held in abeyance pending a final decision on a Motion to Reconsider the Court's ruling allowing discovery. The docket does not indicate that any such Motion is still pending, and therefore, the Court will now rule on this request.
As this Court noted in Smith v. District of Columbia, 466 F.Supp.2d 151, 158 (D.D.C.2006), "the ultimate inquiry is whether the total time claimed is reasonable." Asking for a total of $174,289.28 for litigation of discovery requests is simply not reasonable. Consequently, the Plaintiffs' request of $85,000 in this fee petition must be reduced by 10 percent.
5. Plaintiffs seek $17,472 for their work monitoring the Dental Order. Defendants request in their Opposition filed on February 12, 2010, that the Court defer ruling on this issue until it has decided the then-pending Motion of Defendants to Vacate the Dental Order. That decision has been made and a Memorandum Opinion was issued on February 18, 2010, denying the Motion. Salazar v. D.C., 685 F.Supp.2d 72 (D.D.C.2010). However, Plaintiffs are not seeking these fees at this time so as to give Defendants an opportunity to raise any objections they may have.
6. Plaintiffs request $39,468 for their work relating to blood lead testing. After *75 Plaintiffs filed their Enforcement Motion regarding blood lead testing, the parties agreed that it was more productive to have Dr. Ireys perform a study to determine the actual blood lead testing rate in the District of Columbia and what obstacles exist to children receiving the blood lead screenings which are so important, than to litigate the Motion. It is not fair to say, as Defendants argue, that Plaintiffs "have not prevailed on their Motion." Defs.' Opp. at 13. Applying the general principle that when parties are able to settle an issue, each side wins approximately 50 percent of what they sought, the Court will allow 50 percent of Plaintiffs' attorneys' fees regarding their work on the blood lead testing issue.
7. Defendants argue that the reductions Plaintiffs have made in their fee request for billing judgment are extremely minor and that, after taking into account specific reductions, the total amount awarded should be reduced by 10 percent to account for failure to exercise realistic billing judgment, as well as for providing inadequate billing records. Defendants have made this argument in just about every fee petition request made. Defendants are correct that there was a very minor reduction made by Plaintiffs for the exercise of billing judgment. However, Defendants' claim of inadequate billing records is not justified. In a fee request containing some 7,000 plus entries, there are bound to be a few that are less than clear. In the instances cited by Defendants, they admit that the entries related to the InterQual issue. The Court finds that sufficient.
The Court has frequently noted the extremely high amounts of attorneys' fees requested by Plaintiffs. Indeed, the pending fee request, which is for an 18 month period, is proportionately higher than the previous fee request which was for only six months. Even if the Court were to triple that former fee request of $345,683.39 to account for the 18 month pending request, this request for over $1 million would now be one of the highest ever submitted by Plaintiffs. The Court remains convinced that, while the quality of Plaintiffs' work remains excellent, there is overstaffing, too much time is spent on particular activities such as preparing for Status Conferences and discovery, and Plaintiffs submit Court filings that are simply too long.[5] For these reasons, the Court concludes that an across-the-board reduction of 10 percent is appropriate for those categories of fees that have not already been specifically addressed in this Opinion.
For all these reasons, the Court concludes that Plaintiffs' Motion should be granted in part and denied in part.
NOTES
[1]  This Motion for work performed in 2007 and 2008 was not filed until December 1, 2009, almost one year after completion of the work for which fees are sought. The Motion was not fully briefed until April 28, 2010. The Court was unable to reach the merits of the Motion and, as explained in its Order of December 21, 2010 [Dkt. # 1672], felt it only fair to grant Plaintiffs' Motion for an Award of Uncontested Litigation Costs, Including Attorneys' Fees and Expenses for July Through December 2007 and for 2008, despite the fact that the Motion was in fact opposed by Defendants. As the Court cautioned in granting that Motion, it was not a ruling on the merits, and the parties' arguments on the merits would be fully considered when the underlying Motion for Attorneys' Fees and Expenses was decided, as the Court will now do.
[2]  Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995), cert. denied, 516 U.S. 1115, 116 S.Ct. 916, 133 L.Ed.2d 847 (1996); Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1524 (D.C.Cir. 1988) (en banc).
[3]  For example, the National Legal Services CPI includes research and analysis, discovery, drafting legal documents, preparing and questioning witnesses and consulting experts. Those lawyers surveyed are asked to classify the complexity of their services, whether such services were performed in Federal or State courts, and whether the activities took place at the Trial court, Appellate court or Supreme Court level.
[4]  Four of these status conferences were cancelled after Plaintiffs had fully prepared for them.
[5]  A few examples will suffice. Plaintiffs request $10,471.48 for 28.32 hours expended by five separate attorneys on vague "Strategy Discussions" for July December 2007. Plaintiffs request nearly $9,500 for 26.28 hours of work spent by four attorneys on a September 2007 scheduling/status conference. Plaintiffs seek $4,295.04 for 13.83 hours of unspecified "Legal Research" conducted by four attorneys. Plaintiffs seek nearly $19,000 to cover the costs of 55.15 hours spent by three attorneys and two paralegals in drafting a reply brief for an attorneys' fees application. Plaintiffs request $22,641.28 for more than 44 hours devoted by five separate attorneys and 9.72 hours by a paralegal for drafting an attorneys' fees application. Plaintiffs seek a total of $25,800.95, representing more than 70 hours of work, for four scheduling/status conferences for JanuaryJune 2008. For three of these four conferences, Plaintiffs seek fees for the work of four separate attorneys. Finally, Plaintiffs request over $18,000 for more than 55 hours spent by six attorneys drafting a single motion to compel.


28 So.3d 162 (2010)
JUSTICE ADMINISTRATIVE COMMISSION, Petitioner,
v.
Vanessa T. GAYDEN, Esquire, Respondent.
No. 5D09-3053.
District Court of Appeal of Florida, Fifth District.
February 12, 2010.
Christian D. Lake, Assistant General Counsel Justice Administrative Commission, Tallahassee, for Petitioner.
No Appearance for Respondent.
PER CURIAM.
The Justice Administrative Commission (JAC) seeks certiorari review of an order awarding attorney's fees to Vanessa T. Gayden, Esquire (Gayden). JAC objects because the order was entered without a hearing. Certiorari is an appropriate remedy.
On August 28, 2007, the circuit court appointed Gayden to represent the mother in a dependency proceeding. On November 19, 2007, Gayden submitted a bill for $1,000, which JAC paid. This would have concluded Gayden's involvement in the case but for the fact that the Department of Children and Families had filed a petition to terminate the mother's parental rights. The mother, though personally served with a summons and notice to appear, failed to appear at the termination advisory hearing. Nonetheless, at this hearing, the circuit court appointed Gayden to represent the mother, and Gayden presented argument on the mother's behalf. The trial court subsequently entered an order terminating the mother's parental rights, finding that the mother's default by failure to appear constituted her consent to the termination of her parental rights.
Gayden submitted a bill for $1,000 to JAC for her legal representation of the mother in the termination of parental rights proceeding. JAC sent a letter of objection to Gayden, asserting that it did not have statutory authority to pay because the parent must be present in the court at the time counsel is appointed. JAC instructed Gayden that if she were to seek compensation in the circuit court, she should note JAC's objection and request a hearing. As directed, Gayden filed a "Petition for Payment of Attorney's Fees," *163 wherein she noted that JAC objected to the payment of the fees, and she requested a hearing on the matter. The circuit court, without holding a hearing, entered an order directing JAC to pay $1,000 to Gayden.
JAC is authorized to pay flat fees to appointed counsel in certain proceedings, including dependency and termination of parental rights cases. If there is an objection, the court retains primary authority and responsibility for determining the reasonableness of all billings for attorney's fees, costs, and related expenses, subject to statutory limitations. See § 27.5304(3), Fla. Stat. (2009). As the entity responsible for payment of attorney's fees to court-appointed counsel, JAC is entitled to participate in proceedings related to those fees. Thus, the order awarding attorney's fees to Gayden, who was court-appointed, should not have been entered without giving JAC the opportunity to be heard on its objection. The circuit court's failure to provide this opportunity constitutes a departure from the essential requirements of law. Cf. Brevard County v. Hammel, 575 So.2d 772, 773 (Fla. 5th DCA 1991).
Therefore, we quash the order awarding attorney's fees so that a hearing may be held. We also direct the circuit court's attention to the recent opinions of Justice Administrative Commission v. Harp, 24 So.3d 779, (Fla. 5th DCA 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother's legal representation at the termination of parental rights proceeding under these facts), and Justice Administrative Commission v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009) (holding circuit court departed from essential requirements of law in requiring JAC to pay attorney's fees for counsel appointed to represent fathers in termination proceedings where fathers did not appear at the proceedings, thereby consenting to the termination of their parental rights, and their indigency could not be determined).
PETITION GRANTED; ORDER QUASHED.
MONACO, C.J., SAWAYA and JACOBUS, JJ., concur.


768 F.Supp. 429 (1991)
STORWAL INTERNATIONAL, INC., Plaintiff,
v.
THOM ROCK REALTY COMPANY, L.P., Defendant.
No. 90 Civ. 6922 (RWS).
United States District Court, S.D. New York.
July 8, 1991.
*430 Stroock & Stroock & Lavan (Brian M. Cogan, Howard M. Hoffmann, J. Michael Williams, of counsel), New York City, Holleb & Coff, Chicago, Ill., for plaintiff.
Dreyer and Traub (Menachem J. Kastner, Kerry E. Connolly, of counsel), New York City, for defendant.

OPINION
SWEET, District Judge.
Defendant Thom Rock Realty Company ("Thom Rock") has moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint of plaintiff Storwal International, Inc. ("Storwal") in this diversity action for damages arising from an alleged breach of contract. For the reasons set forth below, the motion is denied.

The Parties
Storwal is a Canadian corporation engaged in the manufacture and wholesale of steel file cabinetry and pedestals for professional commercial offices (the "office furniture business"). Its principal place of business is in Pembroke, Ontario, Canada.
Thom Rock is a New York limited partnership having its principal place of business in New York, New York. Thom Rock develops and owns real estate.

Prior Proceedings
On October 26, 1990, Storwal filed this action seeking a declaration that Thom Rock breached the lease between the parties and damages for breach of contract.
Thom Rock did not answer the first amended complaint. On January 21, 1991, Thom Rock filed the instant summary judgment motion. Oral argument was heard on March 26, 1991, and the motion was considered fully submitted as of that date.

The Facts
By Agreement of Lease, dated April 23, 1986 (the "Lease"), Storwal and Thom Rock entered into a lease for the rental of premises (the "Premises") at 30-30 Thomson place, Long Island City, New York (the "Building").
The term of the lease was for a ten-year period, commencing on May 1, 1986 and expiring on April 30, 1986.
Paragraphs 2(A), 2(B), 20 and 46(C) of the Lease provide as follows:
2(A)  Tenant shall use and occupy the Premises for the showroom display and sale to the trade, at wholesale only, of the following items and for no other use or purpose: Furniture Systems.
2(B)  Landlord covenants that the Project shall be constructed as a first class commercial building intended to be used for showrooms and other related uses.
20  No Representations by Landlord. Tenant expressly acknowledges that Landlord and Landlord's agents have not made, and Tenant, in executing the Lease, is not relying upon, any representations, warranties or promises with respect to the Project, the Building, the Real Property or the premises except as herein expressly set forth and no rights, easements or licenses are acquired by Tenant by implication or otherwise except as expressly set forth herein.
46(C)  This Lease and the attachments hereto shall constitute the entire agreement of the parties hereto; all prior agreements between the parties, whether written or oral, are merged herein and shall be of no force and effect. This lease cannot be changed, modified or discharged orally but only by an agreement in writing, signed by both parties hereto.
The Building was part of a project known as the International Design Center (the "Project"). The Project consists of three buildings. Other tenants of the center occupy premises that consist solely of *431 glass-facade showrooms for the display of office furniture and related uses.
Beginning in the summer of 1990, Thom Rock leased approximately 160,000 square feet of space of the 400,000 square feet of rentable space in the Building to the New York School Construction Authority (the "NYSCA") for a term of five years. A quasi-governmental corporation created by the New York legislature to design, build, and rehabilitate public school buildings in New York State, the NYSCA does not manufacture office furnishings, is not engaged in the wholesale display of such furnishings and does not purchase products of the kind Storwal manufactures. The NYSCA maintains no showrooms nor any glass facades.
A tenant bulletin of May 2, 1990 published by Thom Rock's agent advised the Project's tenants of the NYSCA lease. The bulletin states that "[w]e realize that you have many questions about the NYSCA and their presence at [the Project]." The remainder of the bulletin refers to the landlord's efforts to continue to attract tenants in the furniture business and also to events designed to draw buyers to the Project. The bulletin states that "[w]e have not altered our objective  to have the design industry centered here."
After NYSCA leased the premises, Thom Rock built a fourth floor pedestrian walkway across the Building's atrium. The walkway bisects the atrium in the Building and terminates just in front of and above the Storwal showroom on the third floor. Before the construction of the walkway, the Storwal showroom was visible from the pedestrian walkways surrounding the fourth and fifth levels of the Building. The walkway now partially blocks the view of the Storwal showroom from many vantage points along the fourth and fifth levels of the building.

Discussion

I. Summary Judgment Standard

Summary judgment is authorized if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Summary judgment is appropriate only in the circumstances where "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of demonstrating the absence of any genuine issue as to all the material facts, and the non-moving party is entitled to all favorable inferences that may be drawn from the evidence. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444-45 (2d Cir.1980).
Applying the above summary judgment standards to the instant dispute, Thom Rock has the burden of showing the absence of any genuine issue of fact as to the terms of the Lease. To this end, Thom Rock relies primarily on the integration clauses contained in paragraphs 20 and 46(A) of the Lease, which in essence provide that the Lease, and no other extrinsic representations, represents the parties' entire agreement.
If, however, a contract with an integration clause is susceptible of at least two interpretations, a court can consider extrinsic evidence not to prove different or additional terms, but to aid in interpreting ambiguous terms of such a contract. Proteus Books Ltd. v. Cherry Lane Music Co., 873 F.2d 502, 509 (2d Cir.1989). The determination of whether a contract is ambiguous is a threshold question of law. Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 27 (2d Cir.1988). If a court determines that language is susceptible of two interpretations and is therefore ambiguous, then parole evidence is admissable, not to vary the terms of the lease, but to aid in construing the ambiguous language. Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1320 n. 2 (2d Cir.1975). If, moreover, the extrinsic evidence regarding the parties' intent is conflicting, then summary judgment is improper. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983).

II. The Use Restriction Clause

The instant dispute over whether Thom Rock breached the Lease centers on whether *432 Paragraph 2(B) is a use restriction clause preventing Thom Rock from leasing space in the Project to tenants other than those who are in the business of the display and sale of office furniture.

1. Construction of the Lease
Paragraph 2(B) provides that:
2(B)  Landlord covenants that the Project shall be constructed as a first class commercial building intended to be used for showrooms and other related uses.
Restrictive conditions in a lease are to be construed so as to carry out the intent of the parties as shown by the words used, considered in connection with the surrounding circumstances, and such intent must be ascertained from an examination of the whole lease and not from the particular clause alone. Eagle Spring Water Co. v. Webb & Knapp, Inc., 236 N.Y.S.2d 266, 280 (1962) (citing Schoonmaker v. Heckscher, 171 App.Div. 148, 157 N.Y.S. 75, Bovin v. Galitzka, 250 N.Y. 228, 165 N.E. 273 (1929)).
Construing Paragraph 2(B) with the other provisions contained in the lease, Paragraph 2(A) contains a reciprocal restriction preventing the tenant from using the leased property for purposes other than the display and sale of office furniture:
2(A)  Tenant shall use and occupy the Premises for the showroom display and sale to the trade, at wholesale only, of the following items and for no other use or purpose: Furniture Systems.
Paragraphs 2(A) and 2(B) are furthermore consistent with Paragraph 15 of the Rules and Regulations appended as Schedule I to the Lease. Paragraph 15 provides that the landlord may prohibit advertising which "tends to impair the reputation of the Building or Project or its desirability as a building for showrooms ...".
Other provisions further establish the parties' intent that the tenants of the Project were to be engaged in the same business and that the location of several different office furniture companies in the same Project would result in synergies that could not be achieved if these companies were situated in diverse locations. Paragraph 28(A) provides that the landlord will undertake "a program of advertising and promotional events ... designed to assist and promote the business of the tenants." Paragraph 29 provides that the tenants may establish an advisory committee to assist the landlord with respect to the foregoing "program." Paragraph 28(A), moreover, refers to "business," not "businesses."
Considering the contract as a whole, then, there is ample evidence to support construing of the contract to contain a restrictive use clause: other provisions in the contract (relating to advertising and special events as well as restrictions on the tenants' use of the premises) can be read to anticipate the establishment of the Project as a center for the sale and display of office furniture and these clauses support the interpretation that Thom Rock has a concomitant obligation to lease only to tenants in this business. Therefore, as a matter of law, the meaning of Paragraph 2(B) is at the very least ambiguous.
Nor is Benjamin Moore & Co. v. Freedomland, Inc., 36 Misc.2d 640, 233 N.Y.S.2d 545, aff'd, 18 A.D.2d 1137, 239 N.Y.S.2d 531 (1962), which Thom Rock cites in support of its position that Paragraph 2(A) is not a restrictive use clause, dispositive of Storwal's argument that the contract is at the very least susceptible of two interpretations. In Benjamin Moore, a tenant in an amusement park sued the landlord for breach of contract on the grounds that the landlord had agreed to an oral restrictive covenant that "Freedomland would be developed and maintained by the defendant as an historical and educational family recreation and entertainment center of unique character to be maintained with dignity and propriety, free from commonplace and vulgar." The lease contained a merger clause. The court declined to hold that the lease obligated the landlord to maintain the amusement park so as to appeal to a certain class of people or to prohibit certain people from visiting the site.
*433 In Benjamin Moore, however, unlike in the instant case, the lease did not contain any explicit provision that could be construed as evidence of the plaintiff's view of the parties' intent. The plaintiff therefore sought to vary the terms of the lease, and to this end relied on parole evidence, evidence which was explicitly prohibited under the merger clause. In contrast, Storwal in the instant case relies on provisions that are contained within the lease. Storwal supports its interpretation of such provision as a restrictive use clause with other provisions of the lease. Therefore, Storwal has demonstrated that as a matter of law Paragraph 2(B) is at the very least susceptible of two interpretations.

2. Extrinsic Evidence
As stated above, having shown that as a matter of law that Paragraph 2(B) is susceptible of two interpretations, Storwal may introduce extrinsic evidence to demonstrate an issue of fact as to the parties' intent. Heyman, 524 F.2d at 1320 n. 2.
In support of its position, Storwal points to the tenant bulletin of May 2, 1990 published by Thom Rock's agent advising tenants of the NYSCA lease. As discussed above, the bulletin states that "[w]e realize that you have many questions about the NYSCA and their presence at [the Project]." The remainder of the bulletin refers to the landlord's efforts to continue to attract tenants in the furniture business and also to events designed to draw buyers to the Project. The bulletin further states that "[w]e have not altered our objective  to have the design industry centered here."
Storwal has also submitted the affidavit of Jim Mills ("Mills"), then the executive vice president for sales and marketing of Storwal. The Mills affidavit states that Mills visited the Project on three occasions and met with and negotiated with Thom Rock's agent about the lease for showroom space for Storwal. Mills states that representatives of Thom Rock's agent told him that the Project would be operated exclusively as a commercial building exclusively for the showroom display and whole sale of office furnishings, and that the Project would be leased exclusively to office furniture manufacturers and suppliers or their representatives.
In support of its summary judgment motion, Thom Rock adduces, through an affidavit of Harvey Schulweis ("Schulweis"), a general partner of Thom Rock, evidence of the negotiation preceding the signing of the lease as support for its position that the merger clause should govern and further that the parties did not intend paragraph 2(B) to be a restrictive use clause. The evidence from the correspondence relating to the negotiation, Thom Rock argues, demonstrates that Storwal did not insist on a stronger wording for Paragraph 2(B) and therefore did not intend Paragraph 2(B) to be a restrictive use clause. This lack of negotiation of Paragraph 2(B), however, cuts both ways. An equally plausible explanation for Storwal's failure to negotiate this point would be its understanding that the parties' intent regarding the exclusive use clause was mutual. Thom Rock, moreover, does not refute directly the evidence from the Mills affidavit of the oral representations made by its agent during negotiations with Storwal.
Thom Rock further argues that even if Paragraph 2(B) is a restrictive use clause, Thom Rock is not in breach of the lease as the lease to the NYSCA is a "related use" within the meaning of the Paragraph 2(B). In support of its position, the Schulweis affidavit states that "upon information and belief" the NYSCA is a potential customer of the office furniture business and has purchased approximately $2 million worth of office furniture from various tenants in the Project. However, as stated above, Paragraph 2(B) is susceptible of two interpretations as to the restrictive use issue. Where the construction of Paragraph 2(B) with other provisions of the lease creates at the very least an issue of fact as to the intention of the parties as to the use of the Project, there is similarly an issue of fact as to their intent as to what constitutes a "related use." Therefore, as issues of fact exist as to whether the parties intended a restrictive use clause and what constitutes *434 a "related use," the motion for summary judgment is denied.

Conclusion
For the reasons set forth above, Thom Rock's motion for summary judgment is denied.
It is so ordered.


697 F.Supp. 110 (1988)
CHEVY'S INTERNATIONAL, INC., Plaintiff,
v.
SAL DE ENTERPRISES, INC., Salvatore DiCarlo and Marguerite DiCarlo, Defendants.
No. 87 C 3652.
United States District Court, E.D. New York.
September 6, 1988.
*111 Balogh, Osann, Kramer, Dvorak, Genova and Traub (Harold Traub, Angelo Notaro, of counsel), New York City, for plaintiff.
Ronald A. Hollander, Shukat & Hafer (Dorothy Weber Karlitz, of counsel), New York City, for defendants.

MEMORANDUM AND ORDER
NICKERSON, District Judge.
Chevy's International Inc. brought this action against Sal De Enterprises, Inc., and two of its officers Salvatore DiCarlo and Marguerite DiCarlo for damages and injunctive relief for alleged violations of federal and New York State trade laws. Both sides have moved for summary judgment, and defendants have made a number of procedural motions.

I. FACTS
In 1984, plaintiff obtained federal trademark number 1,297,243 for use of the mark "Chevy's" in connection with restaurant services. Plaintiff currently operates five Chevy's facilities in Manhattan in New York City, Tampa, Florida, Fort Lauderdale, Florida, Nashville, Tennessee and Bossier City, Louisiana. Numerous other locations in the United States have seen or will see Chevy's restaurants.
All of the restaurants utilize a 1950s and 1960s "oldies" theme including contemporary music, decor and costumed employees. The trademark is used, not only to identify the restaurant, but also in connection with food and beverage service, souvenirs and the like.
Plaintiff's New York location opened on February 13, 1987. That same month, defendants changed the name of their discotheque in West Islip, New York on Long Island, from "Key Largo" to various appellations all containing the work "Chevy's." Defendants had and continued to utilize a 1950s and 1960s nostalgic theme also. In March and May of 1987, plaintiff claims to have informed the defendants by letter that they were infringing on the registered Chevy's mark. Defendants deny that they received one of the letters and claim the other never reached the desk of president Salvatore DiCarlo.
Defendants say they changed the name of the club to "Bel Aire" in March of 1987. However, the extent to which they continued then and continue now to use the word "Chevy's" in connection with the business is in dispute.

*112 II. ANALYSIS

A.
Both sides move for summary judgment on the issue of liability on the federal and state trademark infringement claims.
Federal trademark law makes actionable the unauthorized use of a registered trademark where "such use is likely to cause confusion, or to cause mistake, or to deceive" the consuming public as to the origin of goods or services. 15 U.S.C. § 1114(1)(a). The courts in the Second Circuit employ the familiar factors developed by Judge Friendly in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 363 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961) in analyzing cases under this standard. Ordinarily, summary judgment on this issue is inappropriate because to find a likelihood of confusion the court must resolve "a question of fact as to the probable or actual reaction of prospective purchasers." American Int'l Group, Inc. v. London Am. Int'l Corp. Ltd., 664 F.2d 348, 351 (2d Cir.1981).
In this case, on the one hand, there is substantial similarity between the marks and the services provided by both parties. On the other hand, defendants have submitted evidence that numerous restaurants throughout the country use the name "Chevy's" and have not been sued. This evidence is not inadmissible hearsay. Unauthorized, third-party use of a mark sometimes justifies an inference that the mark has lost its distinctiveness, and therefore is not worthy of protection. See 3A Altman, Callman: Unfair Comp., Trademarks & Monopolies § 20.44 (1988). Moreover, because the Chevy automobile is a popular image of the 1950s and 1960s, use of that term is not so arbitrary and fanciful (and therefore deserving of greater protection, see McGregor-Doniger, Inc. v. Drizzle Inc., 599 F.2d 1126, 1131 (2d Cir.1979)) as plaintiff suggests.
Under these circumstances, the issue of liability should go to trial. The court reaches the same conclusion on plaintiff's claim that defendants diluted the Chevy's mark under N.Y.Gen.Bus. § 368-d.

B.
The parties have raised issues of fact as to when defendants had notice of the Chevy's registered mark and the extent to which they continued to use a Chevy's mark after notice and indeed after the inception of this lawsuit. Accordingly, the resolution of defendants' contention that plaintiff may not have damages because any infringement was innocent, see 15 U.S. C. §§ 1111, 1117, must wait until trial.

C.
Defendants also move for summary judgment on plaintiff's claim that defendants engaged in "[d]eceptive acts or practices" under N.Y.Gen.Bus. §§ 349(a), (h). This statute was designed to protect consumers from deceptive business practices. Though trademark infringment necessarily involves a degree of consumer deception, the current understanding of section 349 is that it does not apply in trademark cases unless there is "conduct within core areas of traditionally recognized consumer deception." Id. practice commentary (Givens 1988) (citing cases).
In particular plaintiff alleges that defendants violated section 349 by falsely describing their restaurant as the "Original" Chevy's. In the court's view, that characterization, even if factually incorrect, was standard industry puffing that does not rise to the level of consumer deception. Plaintiff also alleges a violation insofar as defendants disseminated "V.I.P." cards, some of which customers presented at plaintiff's restaurant in Manhattan. The cards are not misleading. They state the name and address of defendants' Long Island location and make no reference to plaintiff's restaurant in Manhattan. Though issuance of the cards may have promoted consumer confusion, it hardly amounted to deception.

CONCLUSION
Defendants' and plaintiff's motions for summary judgment as to liability on the federal and state trademark claims are denied. Defendants' motion with respect to *113 damages is denied. Defendants' motion for summary judgment on the claim under N.Y.Gen.Bus. § 349 is granted, and that claim is dismissed.
Defendants' motions to (1) dismiss for failure to join the General Motors Corporation as an indispensable party, (2) bifurcate trial into liability and damages portions, and (3) dismiss as to defendant Marguerita DiCarlo are denied. Defendants' motion to amend its answer is granted, except that defendants shall not plead an affirmative defense plaintiff's failure to join an indispensable party.
So ordered.


86 F.3d 1147
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.UNITED STATES of America, Appellee,v.Jennierose LYNCH, Defendant, Appellant.
No. 95-1486.
United States Court of Appeals, First Circuit.
June 13, 1996.

Appeal from the United States District Court for the District of Massachusetts, Hon.  William G. Young, U.S. District Judge.
Jeffrey M. Smith and Peters, Smith & Moscardelli, by appointment of the court, on brief for appellant.
Donald K. Stern, United States Attorney, and Frank A. Libby, Jr., Assistant United States Attorney, on brief for the United States.
D. MASS.
AFFIRMED.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.
PER CURIAM.

1
In this sentencing appeal, defendant-appellant Jennierose Lynch, represented by able counsel, assigns error in regard to two district court determinations that materially affected the length of her sentence.   Discerning no hint of error, we summarily affirm.

2
1. The appellant's first complaint relates to the district court's drug quantity determination.   The court determined that the appellant personally participated in transactions involving between two and one-half and four kilograms of cocaine;  that the conspiracy of which she was a member, during the period of her membership, launched transactions involving another five to fifteen kilograms at a minimum;  that many (if not all) of these transactions occurred in the course of jointly undertaken criminal activity (the charged conspiracy) and were foreseeable to her;  and that, therefore, she was responsible (in the relevant conduct sense, see U.S.S.G. § 1B1.3) for over five kilograms of cocaine in toto, bringing to bear a mandatory minimum ten-year sentence.   See 21 U.S.C. § 841(b)(1)(A)(ii) (providing for mandatory minimum sentence of ten years in cases involving five kilograms or more of cocaine).

3
We review the district court's findings of fact anent drug quantity only for clear error, and we will set such findings aside only if we are persuaded that the sentencing court has made a "serious mistake."  United States v. Morillo, 8 F.3d 864, 870 (1st Cir.1993).   We are not so persuaded here;  to the contrary, we believe that the sentencing court's findings are both sufficiently explicit and sufficiently record-rooted.

4
Drug quantities need not be determined in a mathematically precise fashion.   Within the margins of reliability, sentencing courts have the authority to make reasonable estimates based on available information.  See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1199 (1st Cir.1993), cert. denied, 114 S.Ct. 2714 (1994);  United States v. Sklar, 920 F.2d 107, 113 (1st Cir.1990).   It is, moreover, settled that members of a drug-trafficking conspiracy may be held accountable at sentencing for different drug quantities depending on the circumstances of their involvement.  See United States v. Munoz, 36 F.3d 1229, 1237 (1st Cir.1994 ), cert. denied, 115 S.Ct. 1164 (1995);  United States v. Garcia, 954 F.2d 12, 16 (1st Cir.1992).   In respect to a defendant's accountability for drug transactions in which she did not personally participate, foreseeability is the key.  See Garcia, 954 F.2d at 16.  "In the usual case, what is foreseeable depends on the scope of the defendant's agreement with the other participants in the criminal enterprise."  Munoz, 36 F.3d at 1237.

5
Here, the record reveals that the district court fully understood these principles, applied the correct legal standard, and made a fact-sensitive determination of what trafficked drugs were, in the court's words, "reasonably foreseeable or actually known to [Lynch] ... during the time she was a knowing and willing participant in th[e] conspiracy."   These findings cannot be set aside under the jurisprudence of clear error.   After all, the district court heard over ten weeks of trial testimony, and also had the benefit of a compendious presentence investigation report (PSI Report)--a report that was not contradicted by countervailing evidence in any relevant particulars.   The testimony and the specifics in the PSI Report, viewed favorably to the government, fully substantiate the findings.   No more is exigible.  See, e.g., United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994) (discussing utility at sentencing of facts contained in PSI Report);  United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990) (discussing utility of trial testimony in the sentencing phase);  see also United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990) (explaining that, when there are two or more plausible views of the evidence, the sentencing court's choice among them cannot be clearly erroneous).1

6
2. The appellant's second issue involves the so-called "safety valve" provision, 18 U.S.C. § 3553(f), which in certain cases constrains the application of mandatory minimum sentences.   Pursuant to this provision, the sentencing court is directed to impose a sentence in accordance with the guidelines (without regard to any statutory minimum) if a convicted defendant satisfies five set criteria.   See id.;   see also U.S.S.G. § 5C1.2 (Nov.1995) (implementing the statute).   The court below held that Lynch failed to meet the fifth of these criteria in that she did not provide complete and truthful information "to the Government" in the appropriate time frame.  18 U.S.C. § 3553(f)(5).   Lynch argues that she satisfied this requirement by providing the information to the probation officer in the course of the compilation of the PSI Report.   The district court disagreed with Lynch's argument.   So do we.

7
We need not tarry.   While this case was pending on appeal, a panel of this court decided the precise point, contrary to the appellant's position, in United States v. Jimenez Martinez, No. 95-1511, slip op. at 19 (1st Cir.  Apr. 24, 1996) (concluding that "government" as used in 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(5) refers exclusively to the prosecutorial authority, and not to the probation department);  see also United States v. Montanez, No. 95-2096, slip op. at 6-7 (1st Cir.  Apr. 24, 1996).   Jimenez Martinez is binding here, and blocks the appellant's desired access to the safety valve.

8
We need go no further.2  Because the appellant's points are unpersuasive, we summarily affirm her conviction and sentence.

1
 Lynch's contention that the district court failed to make specific subsidiary findings of fact related to the drug quantity issues is unavailing.   The sentencing court's findings need not be precise to the point of pedantry.   Here they are sufficiently explicit and comprehensive to withstand criticism

2
 Given the view that we take of the merits, we need not reach--and express no opinion upon--the government's contention that the appellant, in executing the plea agreement, waived her right to prosecute this appeal


                                 In the
                            Court of Appeals
                    Second Appellate District of Texas
                             at Fort Worth
                                  No. 02-18-00328-CV

W.D., Appellant                               §    On Appeal from the 431st District Court

                                              §    of Denton County (16-05722-431)
V.
                                              §    June 27, 2019

R.D., Appellee                                §    Opinion by Justice Gabriel

                                      JUDGMENT

       This court has considered the record on appeal in this case and holds that there

was no reversible error in the trial court’s final decree of divorce. It is ordered that

the final decree of divorce of the trial court is affirmed.

                                        SECOND DISTRICT COURT OF APPEALS

                                        By /s/ Lee Gabriel
                                           Justice Lee Gabriel


698 F.2d 1236
*Petersonv.Sellers
82-7049
UNITED STATES COURT OF APPEALS Eleventh Circuit
1/25/83

1
S.D.Ala.

AFFIRMED

2
---------------

* Fed.R.App. P. 34(a); 11th Cir. R. 23.


IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-93-068-CV

CULLUM COMPANIES, INC.,

	APPELLANT

vs.

DANIEL M. TREVIÑO AND INSURANCE COMPANY
OF NORTH AMERICA,

	APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 475,258, HONORABLE JAMES R. MEYERS, JUDGE PRESIDING

PER CURIAM
	Appellant has filed a motion to dismiss this appeal.  The motion is granted.  Tex.
R. App. P. 59(a).
	The appeal is dismissed.

Before Justices Powers, Jones and Kidd
Dismissed on Appellant's Motion
Filed:  January 12, 1994
Do Not Publish