Natl Hlthcare Invst, et al v. State of Louisiana,

*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opinion should not be published and is not precedent except under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

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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:

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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

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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

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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.

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