*Pursuant to 5TH CIR. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-30794

 

NATIONAL HEALTHCARE INVESTMENTS, INC.,

CARE SERVICES INSTITUTE OF AMERICA, INC.,

doing business as Plantation Nursing Home,

Plaintiffs-Appellants,

versus

STATE OF LOUISIANA, through its 

Department of Health and Hospitals;

DAVID HOOD, in his official capacity

as Secretary of the Louisiana State

Department of Health and Hospitals,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Eastern District of Louisiana

99-CV-3923-D

 

April 4, 2002

Before KING, Chief Judge, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PER CURIAM*:

Plaintiff-Appellants National Healthcare Investments, Inc. and
1At the time the CON was issued, the Department was known as

the Louisiana Department of Health and Human Resources. 

2

Care Services Institute of America appeal the district court’s

judgment against them. Plaintiffs argue that the district court

committed clear error in finding that Care Services did not give

the Louisiana Department of Health and Hospitals (DHH),1 proof that

it incurred an obligation to make a capital expenditure within one

year of receiving a certificate of need (CON) in November 1983.

This action was filed in December 1999.

In reviewing the evidence, the district court relied on the

“presumption of regularity” that supports official acts of public

officers. In the absence of clear evidence to the contrary, this

doctrine presumes that public officers have properly discharged

their official duties. See Butler v. Principi, 244 F.3d 1337, 1340

(Fed. Cir. 2001). The doctrine thus allows courts to presume that

what appears regular is regular, the burden shifting to the

attacker to show the contrary. See id. Thus the fact that the DHH

deemed the CON expired creates a presumption that Care Services did

not timely supply the DHH with the requisite documentary evidence

that it had incurred an obligation.

Plaintiffs contend that, despite this presumption, the record

demonstrates that Care Services did incur such an obligation and

timely furnished DHH documentary evidence thereof. Specifically,

they claim that the fulfillment of the requirement is evidence by:
2Neither the original nor a copy of any of the documents

mentioned in the affidavit and relied on by Care Services, nor

original or copy of any document transmitting any of them to DHH,

is attached to the affidavit or otherwise in the record. 

The affidavit also states that “actual construction of the

facility was delayed for a number of years” after 1983. 

3

1) a purchase agreement allegedly executed by former Care

Services’s president Stephen Culotta to buy a facility where the

nursing home was to be located; 2) a construction contract

allegedly submitted with Care Services’ application for a CON; 3)

a commitment to finance the nursing home from Alliance Federal

Company; and 4) an inducement resolution adopted by the Louisiana

Public Facilities Authority for the issuance of bonds to fund the

nursing home project.

Care Services relies on Culotta’s December 2000 affidavit to

prove the existence and timely transmittal to DHH of the purchase

agreement and construction contract.2 The district court plainly

considered this affidavit, but in this bench tried case was not

obligated to (and plainly did not) credit it to the extent of

finding that it constituted clear evidence, considering the record

as a whole, that Care Services submitted the appropriate

documentation to DHH within one year of receiving its CON. 

Care Services also points to the Staff Comments prepared by

the DHH, which stated that evidence of “ownership or option to

acquire” the site where the facility was to be located was

“included in the application.” By itself, this comment does not

indicate that Care Services had “incurred an obligation” for “the
4

. . . acquisition . . . of a capital asset,” see 42 C.F.R. §

100.103(c)(1983), because Care Services might have only possessed

an option to acquire the site. The owner of an option to buy a

site, of course, does not incur an enforceable obligation to buy

it. In the face of the DHH’s decision to terminate the CON, and a

July 1985 letter from the DHH to Care Services’s former attorney

indicating that the CON had been terminated for failure to submit

the required evidence of obligation to make capital expenditure and

that DHH had never received a construction contract, it was not

clear error for the district court to conclude that Care Services

did not submit to DHH a construction contract proving an obligation

to acquire the site. Nor do the Staff Comments respecting

blueprints suggest that any contract of any kind was ever

submitted.

Care Services also points to a statement in the Staff Comments

that the project was to be “100% financed by the Alliance Federal

Company,” and that “[t]his information was documented in the

application.” But this comment does not necessarily indicate that

Care Services submitted evidence of a “documented binding

commitment . . . accompanied by an acceptance signature of the

proponent.” See LA. REG. vol. 9, no. 7 (1983). Similarly, the

record contains a letter from the Louisiana Public Facilities

Authority announcing that an inducement resolution had been adopted

for the issuance of bonds to support the proposed nursing home. To
5

satisfy the requirement of incurring an obligation under the

regulations, however, Care Service would have to show that the

bonds had “received final approval for sale or issuance.” See id.

Although it is not clear from the record what the adoption of an

“inducement resolution” entails, the minutes of the Louisiana

Public Facilities Authority indicate that the bond issuance had

received only “preliminary approval.” In any case, plaintiffs bear

the burden of demonstrating that the bonds had received final

approval, and have not done so.

Accordingly, plaintiffs have not demonstrated that they timely

showed the DHH that Care Services incurred an obligation to make a

capital expenditure.

AFFIRMED.