for its contractual commitment and the policy underlying the WIC program.
An affirmative response to the question of the City's initial power to impose the priorities does not likewise answer the question whether the City was obliged to capitulate to the Department's judgment that spending levels did not warrant continued implementation of the priorities. Relying upon the state computer figures, the Department insisted that the City had not reached maximum spending levels. See Plaintiffs' Exhibit No. 1; Defendants' Exhibit No. 23. The accuracy of the Department's forecast is, however, suspect. Both Dr. Pitt and Ms. Britton testified that the data processing system showed wide fluctuation in both monthly caseload and monthly expenditure figures. N.T. 24, 116 (Aug. 8, 1978); N.T. 10-12 (Sept. 5, 1978). A two or three month time lag in the availability of the figures was routine. N.T. 23, 116 (Aug. 8, 1978). Furthermore, the Department only monitors voucher redemption. Id. at 18-19. Because redemption may occur as long as 90 days after issuance, a system that focuses solely on redemption, while ignoring the value of vouchers issued but outstanding, cannot accurately reflect whether a program is operating at maximum capacity or is approaching maximum expenditure as of a given date until at least three months after the fact. Coupled with the built-in lag, the delay in the availability of the figures translates into a possible delay of five or six months before the potential for overspending might become apparent.
Plaintiffs point to the assurance that the City would not be responsible for food cost overruns as undermining the City's justification for the continued use of the priorities. See Plaintiffs' Exhibit No. 1. Yet, as Ms. Britton testified, she has no authority to abrogate the contract between the City and the Department, and the Department was unwilling to consent to a contractual modification that would have relieved the City of liability for costs in excess of the contractual ceiling. Contrary to plaintiffs' argument, the Department cannot force the City to operate at a level that the Department predicts is within contractual limitations while denying the City protection if that prediction proves wrong. In my view, the admitted unreliability of the state's data processing system and the Department's reliance upon figures based solely upon voucher redemption justified the City's preference for its own assessment and its continuing use of the priorities.
One final point demands attention. The plaintiffs insist that notwithstanding the power of the City to institute the priorities, the means used by the City to bring its spending within budgetary limits that is, the removal of four-year-olds with no medical problem conflicts with the scheme of priorities outlined on the regulations. I find this contention without merit. The statute includes within its definition of eligibility children under the age of five who meet the nutritional need criteria. 42 U.S.C. § 1786(g)(2) (Supp. V 1975). The regulations in setting forth the priorities distinguish between the degrees of nutritional risk, placing those children with medical and clinical indicators of nutritional need in Priority Group III and those with nutritional need based upon an inadequate dietary pattern in Priority Group V. Compare 7 C.F.R. § 246.7(b)(2)(ii)(C) (1978) With id. § 246.7(b)(2) (ii)(E).
The City's manner of allocating its allotted moneys neither contravened the regulations nor frustrated their underlying policy. The elimination of Priority Group VI postpartum women failed to bring the City's enrollment to an acceptable level, and the City then looked to Priority Group V. The City might have chosen to remove all children in Priority Group V, but the defendants realized that such a drastic step was unnecessary. The City then faced the problem of choosing between those eligible recipients within a single priority category. Because four-year-olds are less likely to develop iron deficiency anemia than children between the ages one and three, Dr. Pitt concluded that four-year-olds were less in need of the supplemental foods. N.T. 122-29 (Aug. 8, 1978). The decision to remove the four-year-old children with no medical or clinical indicators of nutritional need was based on sound medical judgment that their nutritional need was not as great as the remaining participants. The City's action was consistent with the rationale underlying the priorities in that it "assure(d) that those persons in greatest nutritional need are placed in the Program first." 7 C.F.R. § 246.7(b)(2)(ii) (1978).
I am convinced that defendants' action was both permissible and justifiable. They followed a reasoned course to ensure that delivery of supplemental foods to those most in need would not be disrupted. Because of that finding, the possibility that plaintiffs may succeed on their statutory or constitutional claims with respect to the notice and hearing requirements does not tip the balance in favor of preliminary relief. There has been no showing that any of these children, with the exception of Leon Truitt, was a Priority Group III child who was wrongfully removed from the WIC program. Because I have found that defendants' action in implementing the priorities was consistent with the regulations, these plaintiffs appear to have suffered no actual injury as a result of their removal. Their potential successful prosecution of the claim of the right to written notice and a hearing is unlikely to result in reinstatement of their WIC benefits. Rather, inasmuch as they are members of a group with low priority relative to other competitors for limited governmental resources, they were properly removed, and the defendants' failure to give written notice and to provide for a hearing would entitle plaintiffs to nominal damages only. Cf. Carey v. Piphus, supra, 435 U.S. at 259-67, 98 S. Ct. at 1050-1054.
Plaintiffs' failure to demonstrate that they will suffer irreparable injury, coupled with my finding that defendants' action in initiating the priorities was both warranted and permitted under the regulatory scheme, requires me to deny the plaintiffs' motion for a preliminary injunction. The foregoing opinion incorporates the findings of fact and conclusions of law required by Rule 52(a).