text:
I saw my therapist this afternoon at PIW, [redacted]. Mr. [redacted] would like Nurse [redacted] to call him. His number is [redacted].
And no, I have made no progress in the last 25 years. I still believe I am being stalked. I still believe people gang up on me. I still believe I can read hidden hostile signals in what others say. When I tell an employer these things, no employer will want to hire me. I have a right to reasonable accommodation. Even Voc Rehab said I have a right to tell a prospective employer about these issues.
If I go on job interviews it will only end up embarrassing McClendon. Employers will ask, “Who certified this guy for employment? He is severely disturbed.” Then there’s the issue of legal exposure. If I were to commit an act of violence in the workplace (which my history indicates is possible) McClendon could end up being sued because it was McClendon who said I was employable. That’s something to think about.
Your last employment was over 25 years ago, I would like to think you have made some progress since then and feel you are able to work . You may not be able to go back into you previous field or work full time, but I think Voc Rehab will be able to assist you with exploring possible employment options.
I am sending along in Attachment I the DC Court of Appeals decision that found that I was not employable at my last job.
Attachment II is a collection of the narrative portions of my job evaluations on my last job. Mr. [redacted] said I was industrious. That’s what my last employer said, that I was very industrious. That industriousness did not prevent the employer from finding that I was not employable by reason of severe mental illness. Obviously, “industriousness” is irrelevant to employability.
Attachment II is a collection of the narrative portions of my job evaluations on my last job. [Redacted] said I was industrious. That’s what my last employer said, that I was very industrious. That industriousness did not prevent the employer from finding that I was not employable by reason of severe mental illness. Obviously, “industriousness” is irrelevant to employability.
The job counselor with whom I met on Wednesday at Voc Rehab gave me a form to give to my therapist. He has to certify that I am employable.
Congratulations on your accomplishments at AU Law School. Good luck in the future. You were an important part of my legal education and I am grateful for our association!
Will I Return to Work?
I met with a job counselor yesterday at the D.C. Voc Rehab Services Administration. I advised her about my disability. She said it was fine if I discussed the following issues with a prospective employer. Would you hire me? How would you accommodate me?
1. I am a disabled American who is entitled under The Americans With Disabilities Act to reasonable accommodation in the workplace.
2. I have been continuously disabled and unemployed since October 29, 1991.
3. I have been diagnosed with paranoid mental illness including the specific diagnoses of Paranoid (Delusional) Disorder and Paranoid Schizophrenia. Medication has not ameliorated my symptoms. See Murphy v. United Parcel Service, Inc. 527 U.S. 516 (1999 ).
1. I arouse fears that I may become violent in the workplace. Coworkers tend to be afraid of me. See Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998).
2. Supervisors tend to fear that I may carry out a mass homicidal assault on workplace premises. See Freedman v. D.C. Dept. Human Rights.
3. Coworkers tend to develop genuine and reasonable fears that I might become armed and extremely dangerous in the workplace. See Freedman v. D.C. Dept. Human Rights.
4. My behavior can become bizarre, disruptive and violent. See Freedman v. D.C. Dept. Human Rights.
5. My behavior can become disruptive for an entire firm. See Freedman v. D.C. Dept. Human Rights.
6. I require work that ensures total isolation from other employees. See Freedman v. D.C. Dept. Human Rights.
7. I am unable to function in a group setting. See Freedman v. D.C. Dept. Human Rights.
8. I am unable to communicate with my peers. See Freedman v. D.C. Dept. Human Rights.
9. I believe I am able to pick up threatening signals from coworkers (ideas of reference). See Freedman v. D.C. Dept. Human Rights.
I request accommodation that will mitigate the effects of my disorder in the workplace.
I’ll Have to Send this to Burton Caine!!

matches: v. v. v. v. v. v. v. v. v. v.


Justia › US Law › US Case Law › US Supreme Court › Volume 489 › Volt Inf. Sciences v. Stanford Univ.
A construction contract between appellant and appellee contained an agreement to arbitrate all disputes arising out of the contract and a choice-of-law clause providing that the contract would be governed by the law of "the place where the Project is located." When a dispute arose under the contract, appellant made a formal demand for arbitration. In response, appellee filed an action against appellant in the California Superior Court alleging fraud and breach of contract; in the same action, appellee sought indemnity from two other parties involved in the construction project, with whom it did not have arbitration agreements. The trial court denied appellant's motion to compel arbitration and granted appellee's motion to stay arbitration under Cal.Civ.Proc.Code Ann. § 1281.2(c), which allows such a stay pending resolution of related litigation between a party to the arbitration agreement and third parties not bound by it. The State Court of Appeal affirmed, holding that (1) by specifying that the contract would be governed by "the law of the place where the Project is located," the choice-of-law clause incorporated the California rules of arbitration, including § 1281.2(c), into the parties' arbitration agreement, and (2) application of § 1281.2(c) was not preempted by the Federal Arbitration Act (FAA or Act), even though the contract involved interstate commerce.
1. The Court of Appeal's conclusion that the parties intended the choice-of-law clause to incorporate the California arbitration rules into their arbitration agreement is a question of state law, which this Court will not set aside. Pp. 489 U. S. 474-476.
added.) Here, the state court found that, by incorporating California arbitration rules into their agreement, the parties had agreed that arbitration would not proceed in situations within the scope of § 1281.2(c). This was not a finding that appellant had "waived" an FAA-guaranteed right to compel arbitration, but a finding that it had no such right in the first place, because the parties' agreement did not require arbitration to proceed in this situation. Pp. 489 U. S. 474-475.
(b) Also without merit is appellant's argument that the state court's construction of the choice-of-law clause must be set aside because it violates the settled federal rule that questions of arbitrability in contracts subject to the FAA must be resolved with a healthy regard for the federal policy favoring arbitration. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 460 U. S. 24-25. There is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate. Interpreting a choice-of-law clause to make applicable the California arbitration rules -- which are manifestly designed to encourage resort to the arbitral process -- does not offend Moses H. Cone's rule of liberal construction. Pp. 489 U. S. 475-476.
2. Application of § 1281.2(c) to stay arbitration under the parties' contract is not preempted by the FAA. The FAA contains no express preemptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration. Moreover, since the FAA's principal purpose is to ensure that private arbitration agreements are enforced according to their terms, it cannot be said that application of § 1281.2(c) here would undermine the Act's goals and policies. Arbitration under the Act in a matter of consent, not coercion, and the parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 473 U. S. 628, so too may they specify by contract the rules under which the arbitration will be conducted. Where, as here, the parties have agreed to abide by state arbitration rules, enforcing those rules according to the terms of the agreement is fully consistent with the FAA's goals, even if the result is that arbitration is stayed when the Act would otherwise permit it to go forward. Pp. 489 U. S. 476-479.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post p. 489 U. S. 479. O'CONNOR, J., took no part in the consideration or decision of the case.
Unlike its federal counterpart, the California Arbitration Act, Cal.Civ.Proc.Code Ann. § 1280 et seq. (West 1982), contains a provision allowing a court to stay arbitration pending resolution of related litigation. We hold that application of the California statute is not preempted by the Federal Arbitration Act (FAA or Act), 9 U.S.C. § 1 et seq., in a case where the parties have agreed that their arbitration agreement will be governed by the law of California.
in California Superior Court, alleging fraud and breach of contract; in the same action, Stanford also sought indemnity from two other companies involved in the construction project, with whom it did not have arbitration agreements. Volt petitioned the Superior Court to compel arbitration of the dispute. [Footnote 2] Stanford, in turn, moved to stay arbitration pursuant to Cal.Civ.Proc.Code Ann. § 1281.2(c) (West 1982), which permits a court to stay arbitration pending resolution of related litigation between a party to the arbitration agreement and third parties not bound by it, where "there is a possibility of conflicting rulings on a common issue of law or fact." [Footnote 3] The Superior Court denied Volt's motion to compel arbitration and stayed the arbitration proceedings pending the outcome of the litigation on the authority of § 1281.2(c). App. 59-60.
commerce, that the FAA governs contracts in interstate commerce, and that the FAA contains no provision permitting a court to stay arbitration pending resolution of related litigation involving third parties not bound by the arbitration agreement. App. 64-65. However, the court held that, by specifying that their contract would be governed by "the law of the place where the project is located,'" the parties had incorporated the California rules of arbitration, including § 1281.2(c), into their arbitration agreement. Id. at 65. Finally, the court rejected Volt's contention that, even if the parties had agreed to arbitrate under the California rules, application of § 1281.2(c) here was nonetheless preempted by the FAA because the contract involved interstate commerce. Id. at 68-80.
"'not [to] mandate the arbitration of all claims, but merely the enforcement . . . of privately negotiated arbitration agreements.'"
"[i]t does not follow, however, that the federal law has preclusive effect in a case where the parties have chosen in their [arbitration] agreement to abide by state rules."
Court denied Volt's petition for discretionary review. Id. at 87. We postponed consideration of our jurisdiction to the hearing on the merits. 485 U.S. 976 (1988). We now hold that we have appellate jurisdiction, [Footnote 4] and affirm.
Appellant devotes the bulk of its argument to convincing us that the Court of Appeal erred in interpreting the choice-of-law clause to mean that the parties had incorporated the California rules of arbitration into their arbitration agreement. See Brief for Appellant 66-96. Appellant acknowledges, as it must, that the interpretation of private contracts is ordinarily a question of state law, which this Court does not sit to review. See id. at 26, 29. But appellant nonetheless maintains that we should set aside the Court of Appeal's interpretation of this particular contractual provision for two principal reasons.
"petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement."
right to obtain an order directing that "arbitration proceed in the manner provided for in [the parties'] agreement." 9 U.S.C. § 4 (emphasis added). Here the Court of Appeal found that, by incorporating the California rules of arbitration into their agreement, the parties had agreed that arbitration would not proceed in situations which fell within the scope of Calif.Code Civ.Proc.Ann. § 1281.2(c). This was not a finding that appellant had "waived" an FAA-guaranteed right to compel arbitration of this dispute, but a finding that it had no such right in the first place, because the parties' agreement did not require arbitration to proceed in this situation. Accordingly, appellant's contention that the contract interpretation issue presented here involves the "waiver" of a federal right is without merit.
due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.
claimed to conflict with the California statute at issue here, are not applicable in this state court proceeding, and thus cannot preempt application of the California statute. See Brief for Appellee 43-50. While the argument is not without some merit, [Footnote 6] we need not resolve it to decide this case, for we conclude that, even if §§ 3 and 4 of the FAA are fully applicable in state court proceedings, they do not prevent application of Cal.Civ.Proc.Code Ann. § 1281.2(c) to stay arbitration where, as here, the parties have agreed to arbitrate in accordance with California law.
would undermine the goals and policies of the FAA. We conclude that it would not.
The FAA was designed "to overrule the judiciary's longstanding refusal to enforce agreements to arbitrate," Dean Witter Reynolds Inc. v. Byrd, 470 U.S. at 470 U. S. 219-220, and to place such agreements "upon the same footing as other contracts,'" Scherk v. Alberto-Culver Co., 417 U.S. at 417 U. S. 511 (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)). While Congress was no doubt aware that the Act would encourage the expeditious resolution of disputes, its passage "was motivated, first and foremost, by a congressional desire to enforce agreements into which parties had entered." Byrd, 470 U.S. at 470 U. S. 220. Accordingly, we have recognized that the FAA does not require parties to arbitrate when they have not agreed to do so, see id. at 470 U. S. 219 (the Act "does not mandate the arbitration of all claims"), nor does it prevent parties who do agree to arbitrate from excluding certain claims from the scope of their arbitration agreement, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., supra, at 473 U. S. 628 (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 388 U. S. 406 (1967)). It simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms. See Prima Paint, supra, at 388 U. S. 404, n. 12 (the Act was designed "to make arbitration agreements as enforceable as other contracts, but not more so").
private agreements to arbitrate certain wage collection claims). But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself. Indeed, such a result would be quite inimical to the FAA's primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, see Mitsubishi, supra, at 473 U. S. 628, so too may they specify by contract the rules under which that arbitration will be conducted. Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward. By permitting the courts to "rigorously enforce" such agreements according to their terms, see Byrd, supra, at 470 U. S. 221, we give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind by the FAA.
"All claims, disputes and other matters in question between the parties to this contract, arising out of or relating to this contract or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then prevailing unless the parties mutually agreed [sic] otherwise. . . . This agreement to arbitrate . . . shall be specifically enforceable under the prevailing arbitration law."
Volt's motion to compel was apparently brought pursuant to § 4 of the FAA, 9 U.S.C. § 4, and the parallel provision of the California Arbitration Act, Cal.Civ.Proc.Code Ann. § 1281.2 (West 1982); the motion cited both Acts as authority, but did not specify the particular sections upon which reliance was placed. App. 45-46. Volt also asked the court to stay the Superior Court litigation until the arbitration was completed, presumably pursuant to § 3 of the FAA, 9 U.S.C. § 3, and the parallel provision of the California Arbitration Act, Cal.Civ.Proc.Code Ann. § 1281.2(c)(3) (West 1982). App. 45-46.
"[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact[,] . . . the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding."
Here, appellant explicitly drew in question the validity of Cal.Civ.Proc.Code Ann. § 1281.2(c) on federal grounds, contending that the statute, as applied to stay arbitration of this dispute, was preempted by the FAA, and thus invalid under the Supremacy Clause. Because the California Court of Appeal upheld application of the statute against this challenge, our appellate jurisdiction would seem to be assured. See Longshoremen v. Davis, 476 U. S. 380, 476 U. S. 387, n. 8 (1986) (section 1257(2) jurisdiction exists when a state statute is upheld against a claim that its application to a particular set of facts is preempted by federal law); McCarty v. McCarty, 453 U. S. 210, 453 U. S. 219-220, n. 12 (1981) (same). Appellee contends, however, that § 1257(2) jurisdiction does not exist because the Court of Appeal's decision did not directly address the validity of the statute itself, but "simply uph[eld] the validity of the parties' agreement," which in turn required application of the statute. Brief for Appellee 4. Because an agreement is not a "statute," appellee argues, the Court of Appeal's decision is not one from which an appeal under § 1257(2) will lie. Id. at 4-5.
"a state statute is sustained within the meaning of § 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds."
Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 441 U. S. 441 (1979) (citing Cohen v. California, 403 U. S. 15, 403 U. S. 17-18 (1971); Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685, 380 U. S. 686, and n. 1 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 61, n. 3 (1963); Datanke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 257 U. S. 288-290 (1921)), regardless of "the particular grounds or reasons on which the [state court's] decision is put." Id. at 257 U. S. 289. In this case, appellant contended before the Court of Appeal that, even if the contract required application of Cal.Civ.Proc.Code Ann. § 1281.2(c), the California statute, as applied to stay arbitration under this contract in interstate commerce, so conflicted with the FAA that it was invalid under the Supremacy Clause. The Court of Appeal upheld application of the statute against this challenge, and under Datanke-Walker and its progeny, that was sufficient to bring the case within the terms of § 1257(2), even though the court's decision may have been premised on its interpretation of the contract.
Unlike the dissent, see post at 489 U. S. 486-487, we think the California arbitration rules which the parties have incorporated into their contract generally foster the federal policy favoring arbitration. As indicated, the FAA itself contains no provision designed to deal with the special practical problems that arise in multiparty contractual disputes when some or all of the contracts at issue include agreements to arbitrate. California has taken the lead in fashioning a legislative response to this problem, by giving courts authority to consolidate or stay arbitration proceedings in these situations in order to minimize the potential for contradictory judgments. See Calif.Civ.Proc.Code Ann. § 1281.2(c).
While we have held that the FAA's "substantive" provisions -- §§ 1 and 2 -- are applicable in state as well as federal court, see Southland Corp. v. Keating, 465 U. S. 1, 465 U. S. 12 (1984), we have never held that §§ 3 and 4, which by their terms appear to apply only to proceedings in federal court, see 9 U.S.C. § 3 (referring to proceedings "brought in any of the courts of the United States"); § 4 (referring to "any United States district court"), are nonetheless applicable in state court. See Southland Corp v. Keating, supra, at 465 U. S. 16, n. 10 (expressly reserving the question whether "§§ 3 and 4 of the Arbitration Act apply to proceedings in state courts"); see also id. at 29 (O'CONNOR, J., dissenting) (sections 3 and 4 of the FAA apply only in federal court).
Contract shall be governed by the law of the place where the Project is located." [Footnote 2/1] When a dispute arose between the parties, Volt invoked the arbitration clause, while Stanford attempted to avoid it (apparently because the dispute also involved two other contractors with whom Stanford had no arbitration agreements).
Contrary to the Court's view, the state court's construction of the choice-of-law clause is reviewable for two independent reasons.
not sit to review." Ante at 489 U. S. 474. I have no quarrel with the general proposition that the interpretation of contracts is a matter of state law. By ending its analysis at that level of generality, however, the Court overlooks well-established precedent to the effect that, in order to guard against arbitrary denials of federal claims, a state court's construction of a contract in such a way as to preclude enforcement of a federal right is not immune from review in this Court as to its "adequacy."
"The questions we have here to determine are, first, was there a contract, second, what was its proper construction and effect, and, third, was its obligation impaired by subsequent legislation as enforced by the state court? These questions we must answer independently of the conclusion of [the state] court. Of course we should give all proper weight to its judgment, but we cannot perform our duty to enforce the guaranty of the Federal Constitution as to the inviolability of contracts by state legislative action unless we give the questions independent consideration."
mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made, what are its terms and conditions, and whether the State has, by later legislation, impaired its obligation."
Id. at 303 U. S. 100. See also Phelps v. Board of Education of West New York, 300 U. S. 319, 300 U. S. 322-323 (1937); Irving Trust Co. v. Day, 314 U. S. 556, 314 U. S. 561 (1942).
"local questions conclusively settled by the decision of the state court save only as this Court, in the performance of its duty to safeguard an asserted constitutional right, may inquire whether the decision of the state question rests upon a fair or substantial basis."
Id. at 315 U. S. 654.
"necessary and well-settled rule that the exercise of jurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights. It is well-known that this court will decide for itself whether a contract was made, as well as whether the obligation of the contract has been impaired. But that is merely an illustration of a more general rule."
"the existence or the application of a federal right turns on a logically antecedent finding on a matter of state law, it is essential to the Court's performance of its function that it exercise an ancillary jurisdiction to consider the state question. Federal rights could otherwise be nullified by the manipulation of state law."
Wechsler, The Appellate Jurisdiction of the Supreme Court: Reflections on the Law and the Logistics of Direct Review, 34 Wash. & Lee L.Rev. 1043, 1052 (1977). See also Hill, The Inadequate State Ground, 65 Colum.L.Rev. 943 (1965).
Arbitration is, of course, "a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 363 U. S. 582 (1960). I agree with the Court that "the FAA does not require parties to arbitrate when they have not agreed to do so." Ante at 489 U. S. 478. Since the FAA merely requires enforcement of what the parties have agreed to, moreover, they are free if they wish to write an agreement to arbitrate outside the coverage of the FAA. Such an agreement would permit a state rule, otherwise preempted by the FAA, to govern their arbitration. The substantive question in this case is whether or not they have done so. And that question, we have made clear in the past, is a matter of federal law.
notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. . . . [T]he Courts of Appeals have . . . consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability."
More recently, in Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985), we stated that a court should determine whether the parties agreed to arbitrate a dispute "by applying the federal substantive law of arbitrability.'" Id. at 473 U. S. 626, quoting Moses H. Cone, supra, at 460 U. S. 24. See also Southland Corp. v. Keating, 465 U. S. 1 (1984).
ground is so interwoven with the other as not to be an independent matter . . . our jurisdiction is plain"). With a proper application of federal law in this case, the state court's judgment might have been different, and our review is therefore not barred. Cf. Ake v. Oklahoma, 470 U. S. 68, 470 U. S. 74-75 (1985) ("[W]hen resolution of the state procedural law question depends on a federal constitutional ruling, the state law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded").
Construed with deference to the opinion of the California Court of Appeal, yet "with a healthy regard for the federal policy favoring arbitration," Moses H. Cone, supra, at 460 U. S. 24, it is clear that the choice-of-law clause cannot bear the interpretation the California court assigned to it.
Construction of a contractual provision is, of course, a matter of discerning the parties' intent. It is important to recall, in the first place, that, in this case, there is no extrinsic evidence of their intent. We must therefore rely on the contract itself. But the provision of the contract at issue here was not one that these parties drafted themselves. Rather, they incorporated portions of a standard form contract commonly used in the construction industry. That makes it most unlikely that their intent was in any way at variance with the purposes for which choice-of-law clauses are commonly written and the manner in which they are generally interpreted.
"the ever-present problem of determining the respective spheres of authority of the law and courts of the nation and of the member States."
Choice-of-law clauses simply have never been used for the purpose of dealing with the relationship between state and federal law. There is no basis whatever for believing that the parties in this case intended their choice-of-law clause to do so.
of Capaccioli, J.). Thus, "the mere choice of California law is not a selection of California law over federal law. . . ." Id. at 84. In the absence of any evidence to the contrary, it must be assumed that this is what the parties meant by "the law of the place where the Project is located."
"Paragraph 15 provides that the deed is to be governed by the 'law of the jurisdiction' in which the property is located; but the 'law of the jurisdiction' includes federal, as well as state, law."
clause was not intended to make federal law inapplicable to this contract.
Most commercial contracts written in this country contain choice-of-law clauses, similar to the one in the Stanford-Volt contract, specifying which State's law is to govern the interpretation of the contract. See Scoles & Hay, Conflict of Laws, at 632-633 ("Party autonomy means that the parties are free to select the law governing their contract, subject to certain limitations. They will usually do so by means of an express choice-of-law clause in their written contract"). Were every state court to construe such clauses as an expression of the parties' intent to exclude the application of federal law, as has the California Court of Appeal in this case, the result would be to render the Federal Arbitration Act a virtual nullity as to presently existing contracts. I cannot believe that the parties to contracts intend such consequences to flow from their insertion of a standard choice-of-law clause. Even less can I agree that we are powerless to review decisions of state courts that effectively nullify a vital piece of federal legislation. I respectfully. dissent.
American Institute of Architects Document A201, General Conditions of the Contract for Construction § 7.1.1 (1976). See App. 40.
The California Court of Appeal correctly assumed that the FAA, were it applicable, would preempt the provisions of Cal.Civ.Proc.Code Ann. § 1281.2(c) (West 1982): "[I]t is apparent that, were the federal rules to apply, Volt's petition to compel arbitration would have to be granted." App. 65.
Stanford nonetheless attempts to cast doubt on this conclusion by arguing that §§ 3 and 4 of the FAA, which provide for court orders to stay litigation and to compel arbitration, are not applicable in state court. Brief for Appellee 43-50. While we have stated that "state courts, as much as federal courts, are obliged to grant stays of litigation under § 3 of the Arbitration Act," Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 460 U. S. 26 (1983); see also id. at 460 U. S. 26, nn. 34-35, it is immaterial to the resolution of this case whether §§ 3 and 4 actually "apply." The parties here not only agreed to arbitrate, but they also agreed that that agreement would be specifically enforceable. See ante at 489 U. S. 470, n. 1. FAA § 2 -- which indisputably does apply in state court, Southland Corp. v. Keating, 465 U. S. 1 (1984) -- requires the court to enforce the parties' agreement. (Indeed, Southland Corp. can be read to stand for the proposition that § 2 makes all arbitration agreements specifically enforceable. See id. at 465 U. S. 31, and n. 20 (O'CONNOR, J., dissenting).) To stay the arbitration proceedings pending litigation of the same issues, as § 1281.2(c) provides, is not compatible with specific enforcement of the agreement to arbitrate -- which is what the FAA requires here. Section 1281.2(c) therefore cannot be given effect unless -- as the California Court of Appeal held -- the parties somehow agreed that federal law was to play no role in governing their contract.
"We do not find reasonable Volt's interpretation that the 'place' where the project is located be construed to mean not only the state of California, but also the nation of the United States of America."
I do not disagree with the Court's holding, ante at 489 U. S. 477-479, that the FAA does not preempt state arbitration rules, even as applied to contracts involving interstate commerce, when the parties have agreed to arbitrate by those rules to the exclusion of federal arbitration law. I would not reach that question, however, because I conclude that the parties have made no such agreement.
As in Rogers, we have frequently declined to be bound by state procedural rulings that would have prevented us from reaching the federal issue. See, e.g., Davis v. Wechsler, 263 U. S. 22, 263 U. S. 24 (1923); Brown v. Western R. Co. of Ala., 338 U. S. 294, 338 U. S. 295-297 (1949); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 454-458 (1958); James v. Kentucky, 466 U. S. 341, 466 U. S. 348-349 (1984). While in recent years we may have been more willing to examine state procedural rulings, see e.g., Henry v. Mississippi, 379 U. S. 443 (1965), one study of our cases has concluded that we have historically shown less deference to state substantive decisions on ancillary questions than to similar procedural decisions. Hill, The Inadequate State Ground, 65 Colum.L.Rev. 943, 991 (1965); cf. Davis, supra, at 263 U. S. 25.
While the principle of independent review by this Court of the adequacy of the state court's ruling is clear, the proper standard for such review poses a more difficult question. Indeed, our cases have employed a wide range of standards, ranging from de novo review, e.g., Appleby v. City of New York, 271 U. S. 364, 271 U. S. 380 (1926) ("[W]e must give our own judgment . . . and not accept the present conclusion of the state court without inquiry"), to inquiring whether the state judgment rested on a "fair or substantial basis," Memphis Gas Co. v. Beeler, 315 U. S. 649, 315 U. S. 654 (1942); Demorest v. City Bank Co., 321 U. S. 36, 321 U. S. 42 (1944), to determining whether the state court's decision was "palpably erroneous," Phelps v. Board of Education, 300 U. S. 319, 300 U. S. 323 (1937). I have no doubt that the proper standard of review is a narrow one, but I see no need for purposes of the present case to settle on a precise formulation. As will appear below, the state court's construction of the choice-of-law clause cannot be sustained regardless of the standard employed.
"whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability."
Moses H. Cone Memorial Hospital, supra, at 460 U. S. 25.
Whether or not "the California arbitration rules . . . generally foster the federal policy favoring arbitration," ante at 489 U. S. 476, n. 5, is not the relevant question. Section 2 of the FAA requires courts to enforce agreements to arbitrate, and, in Moses H. Cone, we held that doubts as to whether the parties had so agreed were to be resolved in favor of arbitration. Whether California's arbitration rules are more likely than federal law to foster arbitration, i.e., to induce parties to agree to arbitrate disputes, is another matter entirely. On that question, it is up to Congress, not this Court, to "fashio[n] a legislative response," ante at 489 U. S. 476, n. 5, and in the meantime we are not free to substitute our notions of good policy for federal law as currently written.
In Scherk, the contract contained the following clause: "The laws of the State of Illinois, U.S.A. shall apply to and govern this agreement, its interpretation and performance." 417 U.S. at 417 U. S. 509, n. 1. Despite discussing the effect of that clause in a different context, id. at 417 U. S. 519, n. 13, we did not consider the possibility that the FAA might not apply because of the parties' choice of the law of Illinois. Similarly, in Bernhardt, the contract provided for arbitration under New York law. While we recognized a choice-of-law problem as to whether New York or Vermont law was applicable, 350 U.S. at 350 U. S. 205, we resolved the question of arbitrability under the FAA without any reference to the choice-of-law clause.
See, e.g., Huber, Hunt & Nichols, Inc. v. Architectural Stone Co., 625 F.2d 22, 25-26, n. 8 (CA5 1980); Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1268-1271 (CA7 1976); Burke County Public Schools Board of Education v. The Shaver Partnership, 303 N.C. 408, 420-424, 279 S.E.2d 816, 823-825 (1981); Episcopal Housing Corp. v. Federal Ins. Co., 269 S.C. 631, 637, n. 1, 239 S.E.2d 647, 650, n. 1 (1977); Tennessee River Pulp & Paper Co. v. Eichleay Corp., 637 S.W.2d 853, 857-858 (Tenn.1982); Mamlin v. Susan Thomas, Inc., 490 S.W.2d 634, 636-637 (Tex.Civ.App.1973); see also Liddington v. The Energy Group, Inc., 192 Cal.App.3d 1520, 238 Cal.Rptr. 202 (1987) (reversing trial court ruling that had applied § 1281.2(c), rather than the FAA, because choice-of-law clause specified contract would be construed under California law). But see Garden Grove Community Church v. Pittsburgh-Des Moines Steel Co., 140 Cal.App.3d 251, 262, 191 Cal.Rptr. 15, 20 (1983); Standard Co. of New Orleans, Inc. v. Elliott Construction Co., 363 So.2d 671, 677 (La.1978).
Stanford contends that, because the Garden Grove decision antedated the conclusion of the present contract, it must have informed the language the parties used. Brief for Appellee 31-32; Tr. of Oral Arg. 35. This argument might have greater force if the clause had been one the parties actually negotiated, rather than one they incorporated from an industry-wide form contract. In any case, it is impossible to believe that, had they actually intended that a result so foreign to the normal purpose of choice-of-law clauses flow from their agreement, they would have failed to say so explicitly.


No. 1:06-CV-00173 OWW LJO HC, Doc. #1.
On February 16, 2006, Petitioner filed a petition for writ of habeas corpus in this Court.
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases;see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution. . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991);Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
In this case, Petitioner claims deliberate indifference on the part of prison staff. Petitioner seeks compensatory damages. Petitioner is challenging the conditions of his confinement, not the fact or duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983.
Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas corpus relief. The Court further RECOMMENDS that the Clerk of Court be DIRECTED to send Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983. This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


text:
ALASKA OIL AND GAS ASSOCIATION; American Petroleum Institute; State of Alaska; Arctic Slope Regional Corporation; The North Slope Borough; Nana Regional Corporation, Inc.; Bering Straits Native Corporation; Calista Corporation; Tikigaq Corporation; Olgo.. February 29, 2016 Nos. 13–35619, 13–35666, 13–35662, 13–35667, 13–35669.
MINISTRY OF DEFENSE AND SUPPORT FOR THE ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN v. FRYM February 26, 2016 No. 13–57182.
SHOUCHEN YANG v. LYNCH February 26, 2016 No. 12–71773.
READING INTERNATIONAL INC v. MALULANI GROUP LIMITED February 25, 2016 No. 14–16827.
UNITED STATES v. HERNANDEZ CASTRO February 25, 2016 No. 14–10497.
ARIZONA DARWIN v. ENVIRONMENTAL PROTECTION AGENCY February 24, 2016 Nos. 13–70366, 13–70410.
GONZALEZ v. UNITED STATES February 24, 2016 No. 13–15218.
MOSIER LLC v. STONEFIELD JOSEPHSON INC February 23, 2016 No. 13–56453.
OREGON RESTAURANT AND LODGING ASSOCIATION, a non-profit Oregon corporation; Washington Restaurant Association, a nonprofit Washington corporation; Alaska Cabaret, Hotel, Restaurant & Retailers Association, a non-profit Alaska corporation; National Resta.. February 23, 2016 Nos. 13–35765, 14–15243.
SARVER v. CHARTIER LLC LLC LLC LP February 17, 2016 Nos. 11–56986, 12–55429.
UNITED STATES v. EGLASH February 17, 2016 No. 14–30132.
MENA v. LONG February 17, 2016 No. 14–55102.
HAEGER v. GOODYEAR TIRE RUBBER COMPANY February 16, 2016 Nos. 12–17718, 13–16801, 13–16861, 13–16862.
SANDERS v. ENERGY NORTHWEST February 12, 2016 No. 14–35368.
AYALA v. DAVIS February 11, 2016 No. 09–99005.
SIFUENTES v. BRAZELTON February 10, 2016 No. 13–17603.
DAIRE v. LATTIMORE February 9, 2016 No. 12–55667.
IN RE: THE VILLAGE AT LAKERIDGE February 8, 2016 Nos. 13–60038, 13–60039.
SMITH v. SCHRIRO February 4, 2016 Nos. 96–99025, 96–99026, 10–99011.
GARCIA v. COUNTY OF RIVERSIDE February 3, 2016 No. 13–56857.
VALENCIA v. LYNCH February 2, 2016 No. 13–70414.
VILLAVICENCIO ROJAS v. LYNCH February 2, 2016 No. 13–70620.
LLOYD v. CVB FINANCIAL CORPORATION February 1, 2016 No. 13–56838.

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The article is aimed at studying features and conditions of initiation, reaction, and final phase formation in the energetic condensed metal-teflon systems under shock wave loading. Thermodynamic calculations were carried out using the TERMO program. 16 different mixtures were made on the basis of the calculations. The adiabatic combustion temperatures, the composition and quantity of condensed products and the volume of gaseous products were calculated. To increase the combustion temperature, teflon powder was used as one of the components. The calculations showed that the compositions provided a sufficiently wide range of adiabatic combustion temperatures from 1190°C for Cu–Al–C2F4 composition to 3280°C for Hf-B-C2F4. The compositions based on Ni–Al, Cu–Al and Nb–Al with teflon differed in predominance of liquid phase in the products at relatively low combustion temperatures (1740ºС, 1190ºС and 1410ºС, respectively). Shock-wave loading of the samples was carried out in a multi-cell matrix by throwing a flyer. The acceleration of the flyer was carried out by detonation of the explosive. The detonation was initiated by an electric detonator located in the center along the assembly axis. Thus, the design of the recovery fixture provided the same loading conditions in all the cells. Ni–Al, Ni–Al–C2F4, Ti–B–C2F4, Hf–B–C2F4 systems reacted most completely. Thus, the systems based on metals (titanium and hafnium) with additives of boron and teflon are the most promising ones to be used as a reaction material from the viewpoint of the achieved synthesis temperature, initiation by shock-wave action and the reaction completeness.
1. M. I. Alymov, S. G. Vadchenko, I. V. Saikov, I. D. Kovalev. Inorganic Materials: Applied Research. 8 (2), 340 (2017).
2. S. A. Zelepugin, A. YU. Dolgoborodov, O. V. Ivanova, A. S. Zelepugin. Shock-wave synthesis in solid mixtures. Textbook. Tomsk, IAO SB RAS. (2012) 230 p. (in Russian) [С. А. Зелепугин, А. Ю. Долгобородов, О. В. Иванова, А. С. Зелепугин Ударно-волновой синтез в твердых смесях. Томск, Изд-во ИОА СО РАН. 2012. 230 с.].
3. O. V. Ivanova, S. A. Zelepugin Izvestiya vuzov. 55 (9-3), 46 (2012) (in Russian) [Иванова О. В., Зелепугин С. А. Известия высших учебных заведений. Физика, 55 (9-3), 46 (2012)].
4. S. A. Zelepugin, O. V. Ivanova. In: Concise Encyclopedia of Self-Propagating High-Temperature Synthesis: History, Technology, and Products, ed. by I. P. Borovinskaya, A. A. Gromov, E. A. Levashov, Yu. M. Maksimov, A. S. Mukasyan, A. S. Rogachev, Amsterdam, Netherlands; Oxford, United Kingdom; Cambridge, United States: Elsevier (2017) 466.
5. A. Yu. Dolgoborodov. Combustion, Explosion, and Shock Waves. 51 (1), 86 (2015).
6. A. Yu. Dolgoborodov, M. N. Makhov, I. V. Kolbanev A. N., Streletskii V. E. Fortov. Journal of Experimental and Theoretical Physics Letters. 81 (7), 311 (2005).
7. N. A. Imhovik, V. V. Selivanov, A. K. Simonov, A. I. Sergeeva, V. B. Jashin. Armament and Economics. 1 (26), 53 (2014). (in Russian) [Н. А. Имховик, В. В. Селиванов, А. К. Симонов, А. И. Сергеева, В. Б. Яшин. Вооружение и экономика. 1 (26), 53 (2014).].
8. N. A. Imkhovik, A. V. Svidinsky, A. S. Smirnov, V. B. Yashin. Gorenie i Vzryv (Moskva) - Combustion and Explosion. 10 (1), 93 (2017). (inRussian) [Н.А. Имховик, А.В. Свидинский, А.С. Смирнов, В.Б. Яшин. Горение и взрыв. 10(1), 93 (2017)].
9. A. G. Merzshanov. Solid flame combustion. Textbook. Chernogolovka, ISMAN. (2000) 224 p. (in Russian) [А. Г. Мержанов. Твердопламенное горение. Черноголовка. ИСМАН. (2000) 224 с.].
10. A. A. Shiryaev. Thermodynamic of SHS: modern approach. Int. J. of SHS. 4 (4), 351 (1995).
12. N. N. Thadhani, N. Chawla, W. Kibbe. Journal of materials science. 26, 232 (1991).
13. Yu. A. Konon, L. B. Pervukhin, A. D. Chudnovskii. Explosive welding. Textbook. Moscow, Mashinostroenie. (1987) 216 p. (in Russian) [Ю. А. Конон, Л. Б. Первухин, А. Д. Чудновский. Сварка взрывом. Москва, Машиностроение. (1987) 216 с.

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Appeal from the Jefferson Circuit Court, Bessemer Division, No. CV-07-1152, Eugene R. Verin, J.
James A. Hoover, Howard E. Bogard, and Kelli C. Fleming of Burr Forman LLP, Birmingham, for appellant.
Mark D. Wilkerson and Dana H. Billingsley of Wilkerson Bryan, P.C., Montgomery, for appellees Alabama State Health Planning and Development Agency and the Certificate of Need Review Board.
Carey B. McRae and Michel M. Marcoux of Balch Bingham LLP, Birmingham, for appellee South Baldwin Regional Medical Center Home Health Agency.
Alacare Home Health Services, Inc. ("Alacare"), appeals the judgment of the Jefferson Circuit Court, Bessemer Division, affirming a decision by the State Health Planning and Development Agency ("SHPDA") to deny it a Certificate of Need ("CON") to provide home-health services in Baldwin County. We affirm.
The State Health Plan ("SHP") is a comprehensive plan prepared, reviewed, and periodically revised by the Statewide Health Coordinating Council and SHPDA, and approved by the Governor. See § 22-21-260(13), Ala. Code 1975; Rule 410-2-1-.02, Ala. Admin. Code (SHPDA). The SHP is designed to "provide for the development of health programs and resources to assure that quality health services will be available and accessible in a manner which assures continuity of care, at reasonable costs, for all residents of the state." § 22-21-260(13). To determine whether there is a need for home-health services in a particular county, the SHP uses a two-factor methodology, taking into account a county's population, age 65 and older, and that county's prior home-health-utilization rate, which is derived from agency reports. The 1996-1999 SHP, effective July 25, 1996, designated Baldwin County as 1 of 18 Alabama counties that was "possibly underserved" with respect to home health care. That designation was based upon data indicating that existing home-health providers in Baldwin County were serving 149 persons per 1,000 residents age 65 and older, whereas the SHP need methodology for home-health services had set the "need threshold" at 160 persons per 1,000 residents age 65 and older. On July 14, 2004, SHPDA published a Statistical Update to the SHP, indicating that the existing home-health providers in Baldwin County were serving only 104 persons per 1,000 residents age 65 and older and adjusting the "need threshold" to 129 persons per 1,000 residents age 65 and older. In 2004, Baldwin County had 24,392 residents who were age 65 or older. Accordingly, the Statistical Update found that 615 persons, age 65 and older, were underserved by home-health providers in Baldwin County.
The difference between the new "need threshold" number of patients per 1,000 residents over 65 years old (129) and the number of patients per 1,000 residents over 65 years old actually being served by existing home-health providers (104) equals 25. That number (25) multiplied by 24.392 equals 609.8. The record contains no explanation for the discrepancy between 615 and 609.8.
On August 23, 2004, Alacare filed an application with SHPDA for a CON to provide home-health services in Baldwin County. Two other home-health providers — Mid-Delta Health Systems, Inc. ("Mid-Delta"), and Kare-in-Home Services — also filed CON applications. Alacare subsequently purchased Kare-in-Home Services; the two remaining applications by Alacare and Mid-Delta were opposed by intervenors Mid South Home Health Agency, Inc. ("Mid South"), and South Baldwin Regional Medical Center Home Health Agency (hereinafter referred to as the "South Baldwin Agency" in order to differentiate it from the South Baldwin Regional Medical Center hospital). After hearings on November 16, 2005, January 18, 2006, and July 19, 2006, the Certificate of Need Review Board ("CONRB") denied the applications on August 3, 2006. Alacare and Mid-Delta filed timely requests for a fair hearing pursuant to § 22-21-275(14), Ala. Code 1975. Mid South and the South Baldwin Agency intervened and participated in the fair hearing, which was conducted on January 16-19, 2007. The Fair Hearing Officer ("FHO") considered the record of proceedings before the CONRB and the CONRB's ruling on the applications, the testimony of 19 witnesses, and extensive documentary evidence introduced by the applicants and intervenors/opponents.
The evidence at the fair hearing established that there were 13 home-health agencies then serving Baldwin County. Five of those agencies had an office in Baldwin County pursuant to having been granted a CON, and eight agencies were serving Baldwin County pursuant to the contiguous-county rule. At the time of the hearing, Alacare was providing home-health or hospice services in 64 of 67 Alabama counties. When Kare-in-Home Services, which had previously been granted a CON for Mobile County, was acquired by Alacare during the pendency of the CON proceedings, Alacare became eligible to serve Baldwin County patients pursuant to the contiguous-county rule. At the time of the fair hearing, Alacare was serving 16 Baldwin County home-health patients. Alacare applied for a CON for Baldwin County because the logistical difficulties inherent in serving Baldwin County patients from a Mobile office with Mobile staff made it apparent, according to Alacare's corporate representatives, that having a Baldwin County branch office was necessary in order to provide optimal care for its patients. Alacare projected that, if it were granted a CON for Baldwin County, it would serve 162 patients in its first year of operation and 264 patients in its second year. At the time of the hearing, Baldwin County had 24,392 residents who were age 65 and older and 13 existing home-health agencies serving its residents. Mobile County had 48,819 residents who were age 65 and older and 10 home-health agencies serving its residents. The SHP Statistical Update indicated that Mobile County was not underserved, despite the fact that it had twice the population and three fewer providers than Baldwin County.
The contiguous-county rule permits a home-health agency to accept referrals of patients from counties contiguous to the county for which the agency holds a CON so long as the agency does not incur capital expenditures in excess of $500 or establish a branch office in the county of the referral. See § 22-21-265(f), Ala. Code 1975.
Alacare presented extensive evidence regarding its professional staff, state-of-the-art medical equipment, health-monitoring devices, and fiscal soundness. Chief Operating Officer Mark Cook acknowledged that Alacare had applied for a CON for Baldwin County strictly on the basis of the SHP's designation of the county as "possibly underserved"; he admitted that Alacare had not conducted any studies of its own indicating that there was a need for a new home-health provider in Baldwin County. He testified that it had been his experience that when a new provider with a CON comes into a county there is a beneficial effect because, he said, the more people who know about and publicize the benefits of home-health services, the better for all home-health providers.
Nine representatives of other home-health providers in Baldwin County and contiguous counties testified that, despite the SHP's designation of Baldwin County as "possibly underserved," they did not believe there was really a need for a new home-health provider in the county. Seven of those representatives said that, if there were actually a need, his or her agency could easily take on five to seven more patients each month without hiring additional staff. Two representatives said their agencies could assume the care of five to seven more patients each week. Randy Smith, the director of business development for LHC Group, Inc., a hospital-based home-health agency in Mobile, testified that, as a "grandfathered" CON agency, LHC Group could have opened a branch office in Baldwin County, but it chose not to do so because it did not believe there was a need for another home-health provider there. The representatives testified that their agencies employed marketing agents whose job it was to educate the community and its physicians about the benefits of home health care and to provide information about making home-health referrals. The evidence indicated that the marketing agents often met each other at community events and in physicians' offices when they were engaged in promoting their services and, as one witness put it, "hustling" to get patient referrals. Dr. Ellis Allen, the medical director of the South Baldwin Agency, testified that he believed that most primary-care physicians and those who admit patients to the hospital were aware of the availability of home-health services and how to use them. He stated that, in his 14 years of medical practice, he had never had trouble referring a patient for home health care. The FHO heard testimony from six of the witnesses identified in note 3, supra, indicating that the addition of another home-health provider in Baldwin County would create employee-retention problems for the current providers, who were already experiencing the effects of a shortage of registered nurses, physical therapists, and occupational therapists, thereby resulting, the current providers said, in diminished continuity of care for patients.
Those representatives and providers are: Randy Smith, director of business development for LHC Group, Inc., in Mobile; Robert Hale, director of operations for Springhill Home Health and Hospice in Mobile; Robert Kyle Powell, consultant at Mercy Medical Hospital in Daphne; Traci Suire, account executive at Vanguard Home Health of Foley; Dr. Ellis Allen, medical director for the South Baldwin Agency; Beverly Mann, team leader of the home-health department of Thomas Hospital in Fairhope; Shawna Geri, director of the South Baldwin Agency; Pamela Campbell, branch manager of Baldwin County operations, Mid-South/Gentiva Corp.; and Berry Sowell, vice president of provider relations, Gentiva Corp.
On July 3, 2007, the FHO issued a 33-page decision denying both CON applications. Pursuant to § 22-21-274(14), Ala. Code 1975, the FHO's decision became SHPDA's final decision. Alacare filed a timely notice of appeal with SHPDA and a brief in support of its petition for judicial review in the Jefferson Circuit Court, Bessemer Division. Mid-Delta did not appeal. Mid South and the South Baldwin Agency filed a joint motion to intervene in the circuit court proceeding. The circuit court granted their motion and received briefs of the parties and intervenors/opponents. After conducting a record review, see § 41-22-20(j), Ala. Code 1975, the circuit court entered a judgment on May 23, 2008, affirming SHPDA's denial of Alacare's CON application. Alacare filed a timely postjudgment motion, which the circuit court denied on August 29, 2008. Alacare appealed to this court on October 9, 2008, raising five issues on appeal.
In Colonial Management Group, L.P. v. State Health Planning and Development Agency, 853 So.2d 972, 974-75 (Ala.Civ.App. 2002), this court discussed the principles that apply to appellate review of an administrative agency's action.
"§ 41-22-20(k), Ala. Code 1975 (emphasis added). In reviewing the decision of a state administrative agency, `[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.' Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App. 1993). `The weight or importance assigned to any given piece of evidence presented in a CON application is left primarily to the [CONRB's] discretion, in light of the [CONRB's] recognized expertise in dealing with these specialized areas.' State Health Planning Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176, 178 (Ala.Civ.App. 1999). Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App. 1993). `This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.' Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App. 1989). Further, `an agency's interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.' Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App. 1994)."
Section 22-21-264, Ala. Code 1975, establishes the minimum review criteria for CON applications. The criteria pertinent to Alacare's application are (1) whether the application is consistent with the SHP, (2) whether there is a relationship between the services proposed and the applicant's long-range development plan, (3) whether there are "alternative, less costly, or more effective methods of providing such services," (4) whether there is "a substantially unmet public requirement for the proposed . . . service," and (5) whether the applicant is appropriate, or the most appropriate applicant in the event of duplicative applications.
"(5) That patients will experience serious problems in obtaining inpatient care of the type proposed in the absence of the proposed new service."
If SHPDA is unable to make any of the five findings required by § 22-21-266, then a CON "cannot be issued." Nursing Home of Dothan, Inc. v. Alabama State Health Planning Dev. Agency, 542 So.2d 935, 939 (Ala.Civ.App. 1988).
Section 22-21-264(1), § 22-21-266(1), Ala. Code 1975, and Rule 410-1-6-.02, Ala. Admin. Code (SHPDA), require that any proposed new health-care service be consistent with the SHP in effect at the time the CON application is received by the state agency. The FHO found that Alacare's CON application was inconsistent with the SHP. Alacare argues that the circuit court erred in upholding that finding. It contends that, because the 1996-1999 SHP designated Baldwin County as "possibly underserved" with respect to home-health services, thereby indicating, Alacare says, that new home-health providers were possibly needed, its application to be a provider for the "possibly underserved" Baldwin County population could not have been inconsistent with the SHP. We agree; Alacare's CON application was not, as a matter of law, inconsistent with the SHP.
The parties agreed that during the CONRB hearings on Alacare's application, the chairman of the CONRB had questioned whether there really was an unmet need for home-health services in Baldwin County or whether the methodology underlying the conclusion that Baldwin County was "possibly underserved" was flawed. The parties also agreed that the methodology question was not resolved in the CONRB hearing. At the fair hearing, the opponents of Alacare's application, Mid-South and the South Baldwin Agency, presented evidence indicating that the SHPDA need methodology was flawed, or at least inapplicable to Baldwin County. The opponents presented testimony indicating that, although Baldwin County has a sizeable population of residents who are 65 years of age and older, most of the senior citizens who live in Baldwin County are relatively affluent, active, and choose to live in the area because of recreational opportunities such as golf, tennis, and water sports. Thus, the opponents claimed, many of the residents who, based upon age alone, fall within the demographic group of potential home-health patients do not actually need home-health services. The opponents also presented evidence tending to show that, when Baldwin County senior citizens do reach the point at which they need home-health services, many move out of the county to be closer to relatives. Alacare countered that evidence by introducing statistical data showing that Baldwin County's senior-citizen population is increasing and is projected to increase by almost 180% by the year 2025.
To the extent that the FHO gave any weight to evidence indicating that the SHP need methodology was flawed with respect to Baldwin County it erred. A fair hearing on a CON application is not the proper forum in which to argue that the SHP need methodology should be revised. Revisions to the SHP may be accomplished in three ways, namely: (1) by a plan adjustment, which is "[a] requested modification or exception, to the SHP, of limited duration, to permit additional facilities, beds, services, or equipment to address circumstances and meet the identified needs of a specific county, or part thereof, or another specific planning region that is less than statewide and identified in the State Health Plan," see Rule 410-2-5-.04(2)(a), Ala. Admin. Code (SHPDA); (2) by a statistical update, which is "[a]n update of a specific section of the SHP to reflect more current population, utilization, or other statistical data," see Rule 410-2-5-.04(2)(b), Ala. Admin. Code (SHPDA); or (3) by a plan amendment, which is "[t]he alteration or adoption of rules, policies, methodologies, or any other plan revision that does not meet the plan adjustment or statistical update definition," see Rule 410-2-5-.04(2)(c), Ala. Admin. Code (SHPDA) — all of which are accomplished by making an application to SHPDA, see Rule 410-2-5-.04(3), Ala. Admin. Code (SHPDA).
The FHO's conclusion that Alacare's CON application was inconsistent with the SHP was "[a]ffected by [an] error of law," § 41-22-20(k)(5), Ala. Code 1975, and "[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record," § 41-22-20(k)(6), Ala. Code 1975. Nevertheless, we conclude that, based upon a review of the entire record and the FHO's findings with respect to the other criteria listed in §§ 22-21-264 and 22-21-126, the FHO's error with respect to the inconsistency finding did not prejudice Alacare's substantial rights within the meaning of the last sentence of § 41-22-20(k), or Rule 45, Ala. R.App. P. See, e.g., Humana Med. Corp. v. State Health Planning Dev. Agency, 460 So.2d 1295 (Ala.Civ.App. 1984) (citing §§ 22-21-266(2) and (3), Ala. Code 1975, and affirming the denial of a CON, despite the fact that the CON application was consistent with the SHP, because the record contained substantial evidence indicating that there were less costly and more efficient alternatives to the proposed new health service and that there was no unmet community need for the service); Nursing Home of Dothan, Inc., 542 So.2d at 939 (holding that, if SHPDA is unable to make any of the five findings required by § 22-21-266, then a CON "cannot be issued").
Notwithstanding the FHO's error with respect to the first criterion listed in § 22-21-266(1), the FHO's findings with respect to two other criteria were supported by substantial evidence, were unaffected by an error of law that prejudiced Alacare's substantial rights, and sufficed to deny Alacare a CON and to uphold the FHO's decision. We will discuss the two other criteria in Parts III and IV of this opinion.
Alacare contends that the FHO's conclusion, and thereby SHPDA's conclusion, that Alacare's CON application was due to be denied was not based on the record as a whole. Specifically, it claims that because the FHO summarized the testimony in a 12-page section of his order but allotted only 2 of those pages to the evidence presented by Alacare, he did not thoroughly consider and weigh Alacare's evidence.
Initially, we note that, of the 19 witnesses who testified at the fair hearing, 3 testified for Alacare, 6 testified for Mid-Delta, and 10 testified for the opponents of the CON application. Thus, that part of the FHO's evidentiary summary that was addressed to the testimony of the opponents' witnesses was naturally lengthier than the part addressed to Alacare's witnesses. Moreover, as we have previously pointed out in Part I of this opinion, if SHPDA is unable to make any of the findings required by § 22-21-266, then a CON "cannot be issued." Nursing Home of Dothan, Inc., 542 So.2d at 939.
The FHO's summary of the evidence presented by Alacare and by its opponents, Mid South and the South Baldwin Agency, focused primarily on testimony concerning two § 22-21-264 and § 22-21-266 findings that, the FHO concluded, could not be made based on the evidence presented at the fair hearing, namely: (1) that there was not a substantially unmet public need for the proposed new home-health service; and (2) that there were alternative, less costly, or more effective methods of providing the proposed home-health services.
We cannot hold that the FHO, by concentrating on the evidence concerning issues that he considered dispositive, failed to consider and weigh the evidence on the other issues. Cf. Calvert v. Casualty Reciprocal Exch. Ins. Co., 523 So.2d 361, 362 (Ala. 1988) (stating that a defendant is "entitled to summary judgment when it is shown that there is no evidence to support some element of the plaintiff's cause of action" (emphasis added)).
The FHO determined that Alacare had "fail[ed] to establish" that there existed a substantially unmet need for home-health services in Baldwin County. See § 22-21-264(4); §§ 22-21-266(3) and (5); and Rule 410-1-6-.05, Ala. Admin. Code (SHPDA).
A. First, Alacare maintains that the circuit court erred in upholding that determination because, Alacare says, the determination was based upon the FHO's finding that Alacare did not "provide persuasive evidence . . . that any residents or referring physicians in the county have been unable to access [home-health] services when needed."
"On appeal, Colonial continues to argue that the CONRB's decision is not supported by substantial evidence because [the CON applicant] failed to present statistical data demonstrating an unmet community need. However, there are no relevant statutory provisions or administrative regulations requiring [an applicant] to submit specific statistical data in support of its CON application. The relevant provisions provide that `specific data' submitted by a CON applicant be `reasonable, relevant and appropriate.' See § 22-21-264(4)(b), Ala. Code 1975, and SHPDA Reg. 410-1-6-.05."
Alacare is correct in arguing that Rule 410-1-6-.05(1)(b) and Colonial do not mandate that a CON applicant present any particular type of "specific data" in order to establish an unmet need. Alacare met its initial burden of presenting specific data to establish an unmet community need. Accordingly, to the extent that the FHO's determination — that Alacare had "fail[ed] to establish" that there existed a substantially unmet need for home-health services in Baldwin County — can be interpreted as a conclusion about the sufficiency of Alacare's proof, that determination was erroneous. Reading the FHO's order in its entirety, however, (and considering the FHO's finding that Alacare did not "provide persuasive evidence . . .") we believe that the FHO's no-unmet-need determination addressed the weight of Alacare's evidence, see Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (1988) (distinguishing between weight of the evidence and sufficiency of the evidence), and represented a conclusion that Alacare's evidence, though sufficient, was less convincing than the evidence presented in opposition. Although Alacare was certainly entitled to rely only on the demographic and statistical data in the SHP itself to show an unmet need for home-health services in Baldwin County, the FHO was entitled to weigh in favor of the CON opponents the fact that Alacare admittedly did not undertake, or present evidence of, any other need analysis, especially given the uncertainty of the SHP designation that Baldwin County was " possibly underserved" with respect to home health care. Compare State Health Planning Dev. Agency v. West Walker Hospice, Inc., 993 So.2d 25, 27 (Ala.Civ.App. 2008) (stating that the CON applicant "presented evidence indicating that it had . . . consulted with in-home hospice programs to gauge the need for its facility, [and] had commissioned a needs analysis from an expert in elder care").
Alacare presented, among other things, evidence of population statistics and growth as well as current and projected utilization of home-health services. Evidence of that kind is expressly authorized by Rule 410-1-6-.06, which sets out the additional criteria for determining whether there is a need for a proposed service.
B. Second, Alacare contends that the FHO's no-unmet-need determination was erroneous as a matter of law because, Alacare says, it was wholly based on an incorrect interpretation of the "specific data" requirement. We disagree. In fact, Alacare's own argument — that the FHO spent 12 pages summarizing the opponents' testimony and only 2 pages summarizing Alacare's testimony — which we have addressed in Part II of this opinion, undercuts the contention that the FHO based its conclusion that another home-health provider was not needed in Baldwin County solely on his misinterpretation of the "specific data" requirement. The vast majority of the FHO's 12-page summary of the opponents' evidence dealt with the opponents' testimony that Baldwin County was not underserved, as demonstrated by the fact that physicians had no trouble referring patients to home-health agencies, that the existing agencies were "hustling" to get patient referrals, and that the existing agencies could easily take on additional patients without hiring extra staff. In fact, Gene Sykes, Alacare's chief financial officer, acknowledged on cross-examination that if 8 of the 13 existing home-health providers served 7 additional patients each month, the annual new-patient increase would be 672, more patients than the 615 persons that the 2004 SHP Statistical Update had determined were underserved by home-health providers in Baldwin County.
Based on such evidence, as well as Alacare's admittedly not having undertaken any analysis to assess the need for its services in Baldwin County, the FHO was authorized to determine that Alacare had not persuaded him that there was a substantially unmet need for home-health services in Baldwin County. See § 22-21-264(4).
"`The weight or importance assigned to any given piece of evidence presented in a CON application is left primarily to the [CONRB's] discretion, in light of the [CONRB's] recognized expertise in dealing with these specialized areas.' State Health Planning Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176, 178 (Ala.Civ.App. 1999). Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App. 1993). `This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.' Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App. 1989)."
Colonial Mgmt. Group, L.P. v. State Health Planning Dev. Agency, 853 So.2d at 975.
"Alacare Chief Financial Officer Gene Sykes testified that in the SHPDA fiscal year ending September 2004, Alacare provided services to either `116 or less' Medicaid patients in Alabama. This was a total for the entire company which, at the time, was servicing 57 or 58 counties in the state. During the same time period, Mercy Medical's home-health agency provided care to 176 Medicaid patients in Baldwin County, Mid-South served 95 Medicaid patients in Baldwin County, the South Baldwin Agency served 24 Medicaid patients in Baldwin County, and Amedisys Home Health served 13 Medicaid patients in Baldwin County.
"This FHO finds this divergence in the service to indigent patients striking and finds that it bolsters the current Baldwin County providers' contention that Alacare will come into Baldwin County, if its application were to be granted, and treat the more profitable patients leaving the current providers to maintain the same indigent patient case load but with less revenue-producing patient loads to offset the uncompensated or minimally-compensated patients."
The foregoing finding is supported by substantial evidence and properly serves as the underpinning for the FHO's conclusion that Alacare's CON application did not meet the policy guidelines of the SHP and SHPDA rules because it would have a "detrimental effect . . . on existing health-care facilities," see Rule 410-1-6-.06(1)(e), Ala. Admin. Code (SHPDA), and because it "would not contribute to meeting the healthcare needs of traditionally medically underserved groups," see Rule 410-1-6-.07(1), Ala. Admin. Code (SHPDA).
"Ronald J. Beamon, . . . the Chief Financial Officer for South Baldwin Regional Medical Center [hospital], . . . has had over 21 years experience analyzing financial and operational concerns for healthcare operations, and he is a certified public accountant. Mr. Beamon testified that the home health agency as a `product line' was a profitable venture for the hospital. In 2005, for instance, the hospital's home health agency contributed $600,543 to the bottom line of the hospital. Likewise, in 2006, the home health agency contributed $478,242 to the hospital. Mr. Beamon testified that a ten percent (10%) reduction in the home-health agency's profitability would lead to a marginal decrease of over $45,000 annually. A more drastic 30% decrease would lead to an estimated $136,800 annual decrease to the bottom line of the hospital. These figures are important, according to Mr. Beamon, because South Baldwin Regional Medical Center uses the additional money from its home health operations to fund other hospital functions and services that do not bring profit to the hospital. For example, Mr. Beamon testified that in 2005 the hospital provided over $15 million worth of uncompensated medical care to members of the Baldwin County community. Likewise, in 2006, and looking only at the Gulf Shores, Alabama area, the hospital provided over $1.5 million worth of uncompensated medical care; and during the same time period for the Orange Beach, Alabama area, the hospital provided almost one million dollars in uncompensated medical care to that community. According to Mr. Beamon, if the home health agency is not able to continue to contribute positively to the hospital's bottom line, he, as CFO, would have the duty to examine expenses and determine whether certain unprofitable community outreach programs should be discontinued or curtailed."
Alacare maintains that the FHO was barred from considering the financial impact on South Baldwin's hospital operations because, when assessing what effect a new home-health provider will have on existing providers, only the effect on providers of "similar services," i.e., home-health services, should be considered. We agree.
"Administrative rules are subject to the same well-known maxims of construction as statutes. See generally 73 C.J.S. Public Administrative Law Procedure § 211 (2007). `The language used in an administrative regulation should be given its natural, plain, ordinary, and commonly understood meaning, just as language in a statute. Alabama Medicaid Agency v. Beverly Enterprises, 521 So.2d 1329 (Ala.Civ.App. 1987).' State Pers. Bd. v. Wallace, 682 So.2d 1357, 1359 (Ala.Civ.App. 1996)."
Health Care Auth. of Athens Limestone County v. Statewide Health Coordinating Council, 988 So.2d 574, 591 (Ala.Civ.App. 2008).
The plain meaning of Rule 410-1-6-.06(1)(e) is that like comparators are to be used in assessing the effect of a proposed new health service on existing service providers. For purposes of the present case, a hospital and a home-health agency do not provide "similar services." See Ex parte Shelby Med. Ctr., Inc., 564 So.2d 63, 69 (Ala. 1990) (in deciding whether "existing inpatient facilities with services similar to those proposed" were "being used in an appropriate and efficient manner consistent with community demands," the court compared hospitals only to other hospitals).
The FHO erred in considering the effect of Alacare's proposed service on South Baldwin's hospital operations. The FHO's conclusion with respect to the effect of Alacare's proposal on other home-health providers, however, was not affected by an error of law, was supported by substantial evidence, and was sufficient to uphold his determinations that Alacare's proposal would have a "detrimental effect . . . on existing health-care facilities" and "would not contribute to meeting the healthcare needs of traditionally medically underserved groups."
In Part I of this opinion we held that the circuit court erred in affirming the FHO's determination that Alacare's CON application was inconsistent with the SHP but that the error did not prejudice Alacare's substantial rights because there were two other criteria that sufficed to deny Alacare a CON and to uphold the FHO's decision. We have analyzed one of the two "other criteria" — that there was not a substantially unmet need for home-health services in Baldwin County, see § 22-21-264(4) — in Part III, supra.
The FHO determined that granting Alacare's CON application would result in "fail[ing] to use available, alternative, less costly and more efficient methods for providing [Baldwin County with home-health] service." The circuit court affirmed that determination.
We have previously set out the evidence that was presented at the fair hearing indicating that the existing home-health providers serving Baldwin County could absorb additional patients without hiring new staff or compromising the quality of patient care. Alacare presented evidence aimed at proving that if it were granted a CON it could operate as efficiently as the existing providers. Alacare's witnesses testified that most of the administrative functions of the agency would be handled at its corporate office in Jefferson County; that it had existing staff in Mobile County, some of whom desired to relocate to Baldwin County; that it would not be required to hire a large permanent staff because it would rely to some degree on contract professionals such as physical therapists and occupational therapists; and, accordingly, that its Baldwin County staff could devote its time and attention to patient care as efficiently as any existing provider. The FHO was authorized not only to credit the existing providers' evidence and to discount Alacare's evidence on this point, but also to decide — even if it believed Alacare's evidence — that the existing providers were entitled to priority, pursuant to Rule 410-1-6-.04(1)(a). The FHO's findings and conclusions on this issue were supported by substantial evidence, and we are not permitted to substitute our judgment for that of the FHO, whose decision was SHPDA's decision. Colonial Mgmt. Group, L.P. v. State Health Planning Dev. Agency, 853 So.2d at 975. See also Ex parte Shelby Med. Ctr., 564 So.2d at 69 (in reversing a decision by the Court of Civil Appeals that affirmed SHPDA's decision to grant a CON, the Alabama Supreme Court held that there was substantial evidence showing "that less costly alternatives were available").
The circuit court's January 29, 2008, order established a briefing schedule for the parties and intervenors; the order further provided that, at the conclusion of the briefing schedule, the "matter shall be deemed submitted on the record." In its May 2, 2008, reply brief to the circuit court, Alacare requested oral argument. On May 23, 2008, the circuit court rendered a judgment affirming SHPDA's decision without hearing oral argument.
A. Alacare argues that the circuit court violated the last sentence of § 41-22-20(j), Ala. Code 1975, which provides that, upon a petition for judicial review of an agency action in a contested case, "[t]he court, upon request, shall hear oral argument and receive written briefs."
On August 13, 2008, the circuit court held a hearing on Alacare's postjudgment motion and stated that it would hear oral argument so that Alacare could "make its record." At that time, Alacare made the same arguments to the circuit court that it had made in its principal brief and in its reply brief to that court, and that it now makes on appeal to this court, namely: (1) that the FHO's decision erroneously determined that Alacare's CON application was "inconsistent with the SHP"; and (2) that Alacare was not required to "present specific statistical data demonstrating an unmet community need" for home-health services in Baldwin County. We have addressed both arguments in this opinion. Accordingly, we conclude that if the circuit court erred by failing to grant Alacare's request for oral argument before it rendered its decision, that error did not injuriously affect Alacare's substantial rights. See § 41-22-20(k) (last sentence), and Rule 45, Ala. R.App. P.
B. On December 19, 2008, Alacare moved the circuit court and this court to supplement and correct the record, alleging that it had just discovered that the exhibits admitted at the fair hearing were omitted from the record that SHPDA was required to provide to the circuit court. See § 41-22-20(g), Ala. Code 1975. The circuit court denied Alacare's motion to supplement and correct the record on the day the motion was filed. On December 23, 2008, Alacare filed an amended motion to supplement and correct the record and to suspend the time for filing briefs with this court. This court granted that motion; on February 10, 2009, we issued an order reinvesting the circuit court with jurisdiction to have the record amended to include the omitted exhibits and to render a judgment in light of the entire record within 28 days. The circuit court received the omitted exhibits from SHPDA on February 17, 2009. On March 9, 2009, the circuit court reaffirmed its May 23, 2008, judgment affirming SHPDA's denial of Alacare's CON application.
Alacare argues that the circuit court erred by failing to conduct a review of the complete SHPDA record before rendering its May 23, 2008, judgment, and then, Alacare says, the circuit court compounded that error by failing to consider carefully the exhibits in the supplemented record after it was reinvested with jurisdiction to "render a judgment in light of the entire record." Alacare maintains that, because the circuit court's March 9, 2009, judgment reaffirmed and adopted its May 23, 2008, judgment verbatim, it could not have conducted a meaningful and thorough review of the omitted exhibits.
Absent any support in the record for Alacare's argument, we presume that the circuit court complied with the instructions this court provided when we reinvested it with jurisdiction, that it reviewed the omitted exhibits, and that its March 9, 2009, judgment cured any prejudice to Alacare that may have arisen from the circuit court's failure to review the omitted exhibits before it rendered the May 23, 2008, judgment.
"It is well settled that an appellant has the burden of presenting a record containing sufficient evidence to show error by the trial court. Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 246 (Ala.Civ.App. 2000). . . . "`This court cannot assume error, nor can it presume the existence of facts to which the record is silent.'" Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala. 1997) (quoting Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App. 1993))."
Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 736 (Ala.Civ.App. 2005).
After reviewing the administrative record and the arguments raised by Alacare, we conclude that the FHO's decision was made in compliance with the applicable law or, to the extent it departed from the applicable law, that those departures did not prejudice Alacare's substantial rights; that its decision was not arbitrary or unreasonable; and that the decision was supported by substantial evidence. State Health Planning Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176, 178 (Ala.Civ.App. 1999). Therefore, we conclude that the circuit court did not err in affirming the FHO's decision. The judgment of the Jefferson Circuit Court, Bessemer Division, is affirmed.
THOMPSON, P.J., and MOORE, J., concur.
BRYAN, J., concurs in the result, without writing.
PITTMAN, J., dissents, without writing.