Opposition Brief — Littles v. Area Health Development Board

—

No. 90-1457

In The

Supreme Court of the United States

October Term, 1990

MARCIA J. LITTLES, M. D.,

Petitioner,

vs.

AREA HEALTH DEVELOPMENT BOARD,

MOSTELLAR MEDICAL CENTER,

JAMES A. HOLLAND, and TYLER W. PEEK

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Robert C. Campbell, III

Sintz, Campbell, Duke and

Taylor

3763 Professional Parkway

Mobile, Alabama 36609

(205) 344-7241

Attorneys for Respondents

TABLE OF CONTENTS

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1. Proceedings Below...... 7

JJ. 2

a. No Intentional Discrimination or

Retaliation Was Practiced Upon

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b. The Area Health Development Board,

Incorporated is a Private Non-Profit

, oie chin Gyn Gs WEN 13

Summary of the Argument 16

Reasons for Denying the Writ ................... 17

I.

II.

The Sole Legal Argument Made By The Petitioner

That The Writ Should Be Granted Is

“Inherently Flawed” Because The

Respondent Is Not A Public Agency

Required By Law To Maintain Minutes

r ioe p ee 17

The District Court’s Findings Are Not

r i exh naibele at 19

IRR ea ing dy en tae A ge ay aay OSCR OF 20

ii

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Property Developer, Inc.,

e ̃è b ͤ W 20

Bull’s Corner Restaurant, Inc. v. Director of

Federal Emergency Management Agency,

err O 20

Kimbrell v. City of Bessemer, 380 So.2d 838

%%% ᷣͤ .. rey ee OL ae ee 18

Mendez v. Belton, 739 F.2d 15 (1st Cir. 1984).......... 18

Steelmet, Inc. v. Caribe Towing Corporation

oa 19

Statutes:

ee ren ME TOD nag ¹1̊ “ꝛ nktfñỹ?ĩ? 16, 18

Rules:

F. R. C. P. 52(a) (as amended August 1, 1985) ..... 17, 19, 20

— —

—— — —́———— —u—.

No. 90-1457

In The

Supreme Court of the United States

October Term, 1990

MARCIA J. LITTLES, M.D.,

Petitioner,

vs.

AREA HEALTH DEVELOPMENT BOARD,

MOSTELLAR MEDICAL CENTER,

JAMES A. HOLLAND, and TYLER W. PEEK

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

1. PROCEEDINGS BELOW.

Respondents adopt the petitioner’s “Statement Of The

Case” as stated on page 4 through 6 in the petitioner’s

Petition for Writ of Certiorari and incorporates same into

Respondents’ Brief in Opposition.

2. STATEMENT OF THE FACTS

Petitioner, Marcia J. Littles’ Statement of the Facts

mischaracterizes the petitioner's employment history

with the Area Health Development Board, the Mostellar

Medical Center, its Board Chairman, Tyler W. Peek and

its Executive Director, James A. Holland. The petitioner’s

Statement of Facts is misleading and inaccurate while

referring to improper citations to the record. Further, the

facts made the basis for the petitioner’s alleged reasons

for granting the writ are contrary to the Federal District

Court’s, Finding of Facts and Conclusions of Law which

were affirmed by the United States Court of Appeals for

the Eleventh Circuit.

a. No Intentional Discrimination Or Retaliation

Was Practiced Upon The Petitioner

The petitioner, a National Health Service Corporation

scholarship candidate, was employed by the Mostellar

Medical Clinic to practice medicine at the new expansion

site of the Mostellar Medical Clinic known as the Grand

Bay Clinic on or about July 16, 1986. (R2-13-17), (R2-133,

134) The petitioner accepted a “private practice assign-

ment” with the Area Health Development Board to fulfill

her commitment to repay the Federal government for

funding her medical education and she received a

starting salary which was higher than eight of ten other

physicians employed at the Mostellar Medical Center. Of

the physicians actively employed when the petitioner

was terminated, petitioner was making a salary greater

than six of those eight individual physicians. See

Respondent’s Exhibit 1.

The Respondent, James A. Holland is the Executive

Director for the Area Health Development Board

responsible for administering medical care at both the

Mostellar Medical Center and the Grand Bay expansion

site. Respondent Holland testified that in the fall of 1986

he received numerous complaints about Dr. Littles

turning patients away on a continuous basis and that he

was concerned with her low patient encounters. (R3-422,

423) Dr. Alan Shain, a former Medical Director for the

Mostellar Medical Clinic (who resigned in July of 1987)

corroborates Respondent Holland’s testimony. Dr. Shain

testified that he discussed with Petitioner Littles her poor

performance and low patient encounters in the fall of

1986 shortly after she was employed. (R3-311) Dr. Shain

stated the petitioner’s reaction was cold and without

much response. (R3-313) Dr. Shain recognized that low

patient encounters had to be improved to justify

expenditures necessary to maintain the Grand Bay

Clinic. (R3-311, 312) Dr. Shain testified the petitioner was

slow in patient delivery. In addition, Dr. Shain stated

that Dr. Littles could not take criticism; was not a team

player; that she was hostile to all employees and that

support personnel were fearful of working with Dr. Littles

when assigned to the clinic. (R3-315-317) Dr. Shain

4

testified that all nurses and support personnel who

disliked working with Petitioner Littles were very

competent personnel. (R3-317) Exhibit 2 entitled “Job

Description for Medical Director” lists as a qualification

that the applicant “Must be sensitive tothe problems and

needs of people from widely divergent cultural back-

grounds. Must exemplify leadership potentials in the

development of a team approach toward establishing a

comprehensive health service delivery system.”

Dr. Shain discussed with Respondent Holland his

concerns regarding Dr. Littles’ low patient encounters

and the fact that she consistently and intentionally

turned away patients on a daily basis. (R3-323, 328, 329)

Dr. Shain stated that Atlanta, Georgia [the Federal

Funding source] set a standard that each doctor should

see about 18 patient encounters, on site, per day. (R3-324)

He stated that low patient encounters would result in the

closing of the medical clinic. (R3-311-312) Dr. Shain

stated that Petitioner Littles was turning patients away

as early as October of 1986 from the Grand Bay Clinic.

(R3-328, 329) Respondent Holland testified that after

many attempts to improve the low patient encounters, he

received no cooperation from Petitioner Littles. Dr. Littles

testified that within 4 months after she was hired, she

requested a $10,000.00 pay raise. (R2-138) While asking

for a substantial pay raise with no monies available for

said raise, Petitioner Littles notified the Clinic Board that

she filed an EEOC complaint against the Area Health

Development Board, Inc. During the same period of time

she sent a demand to renegotiate her 1987 contract,

requesting a $14,000.00 pay raise. (R2-143) All of these

matters had been brought to the attention of the Board

and were reflected in the Board Minutes as identified in

Respondent’s Exhibit 18.

Mr. Holland testified that Dr. Littles continued with

low patient encounters until he developed a recommen-

dation for her termination in May of 1988. (R3-440)

Respondent Holland testified that Petitioner Littles’ poor

performance in the area of low patient encounters and her

constant refusal to treat patients formed the basis of this

recommendation. Mr. Holland adamantly denied that

Petitioner Littles was terminated because of race and/or

sex and he stated that her poor job performance justified

her termination. (R3-437-441) Mr. Holland stated that

Petitioner Littles had told her secretaries and recep-

tionists that she did not want to see patients for up to two

weeks and that she cancelled patients who had

appointments on a daily basis. (R3-439, 440) Respondent

Holland warned Dr. Littles in a letter dated November 21,

1986, identified as Respondent’s Exhibit 9, that she

should strive to see at least 18 patients by the end of the

first year at the clinic or federal funding would be

adversely affected. Petitioner Littles was required to see

at least twelve patients per day, a standard which she

never achieved. (R3-420, 421) The Board minutes reflect

that Petitioner Littles was seeing only 6 patients per day

from August of 1986 through December of 1986. See

Respondent’s Exhibit 5. N

1. —

Dr. Raymond Broughton, a black male physician was

hired as a Physician-Medical Director at the Mostellar

Medical Clinic during July of 1987. (R2-214) Although

petitioner contends that she saw more patients than

given credit for, Dr. Broughton testified that the patient

appointment list, presented by Petitioner Littles as an

encounter list during trial, merely indicated the number

of appointments in petitioner’s appointment book. After

examining her uppointment list it was determined that it

substantially over-represented the number of patient

encounters and did not represent patients actually seen.

(R2-233, 234) Dr. Broughton stated that Petitioner Littles

was definitely not a team player and did not exhibit a

team approach to anything. (R3-291, 292) Dr. Broughton

stated that Petitioner Littles had a problem everyday;

that she was a problem maker and not a problem solver.

(R3-290-293) Dr. Broughton testified that Petitioner

Littles had low patient encounters and that he warned

her on numerous occasions that low patient encounters

and/or low productivity at the Grand Bay site could

result in either the clinic being closed for lack of funding

or her being terminated to which she responded, that's

life in the big city.“ (R2-223)

Dr. Broughton stated that Petitioner Littles con-

tinuously turned patients away who were seeking

medical treatment and that these concerns were brought

to the attention of he and Mr. James Holland. (R2-222-

223) Dr. Broughton stated-that many complaints were

received from patients about Petitioner Littles. He stated

that patients were turned away, appointments were

cancelled, patients were asked to leave who were in the

medical office waiting to receive treatment and that none

of the co-employees or the support help desired to work

with Petitioner Littles. (R2-236, 237, 239, R3-274)

Dr. Broughton testified that no other physicians with

the exception of Petitioner Littles employed by the

Mostellar Medical Clinic have ever refused to see a

patient or turn a patient away. (R3-298-299) Dr.

Broughton stated that Dr. Littles was not meeting the

standard of patient encounters set by the National

Health Service Corporation and that the other physicians

were always striving to meet the standards in order to

keep federal funding. (R3-299) Dr. Broughton also stated

that Dr. Ashbee, a white female was offered the job of

Medics! Director prior to Dr. Broughton accepting the

position. Dr. Broughton said that Dr. Ashbee refused the

position because she wasn’t interested. (R2-231) Dr.

Broughton concurred with Mr. Holland’s recommen-

dation and the Board’s decision to terminate Petitioner

Littles. He stated that Mr. Holland’s concerns about

, Littles’ improper patient care were legitimate and that in

his opinion she was not terminated because of sex or race.

(R2-239, 230) The District Court heard an abundance of

evidence from additional witnesses, through documen-

tation and Board minutes concerning the low productivity

and improper patient care of Petitioner Littles. The

Receptionist, Jackie Poriux who worked with Petitioner

Littles from May of 1987 through May of 1988 stated that

Petitioner Littles almost everyday rescheduled patients

8

and cancelled appointments thereby denying proper

medical treatment. (R3-336-338) She demonstrated to the

Trial Court the manner in which Petitioner Littles would

go through her appointment book on a daily basis and

instruct the receptionist to cancel patients. (R3-338) Ms.

Poriux testified that Petitioner Littles left patients

in waiting rooms for over an hour while she typed letters

in her office. (R3-339) Ms. Poriux’s testimony was

uncontradicted and virtually unchallenged by petitioner.

(R3-342, 343)

Paula Thompson, a Clerk Receptionist who worked for

Petitioner Littles, testified Petitioner Littles instructed

her to turn patients away almost everyday. (R3-344-345)

Ms. Thompson also demonstrated to the Court how

Petitioner Littles would go through her appointment book

during the morning and instruct the receptionist to cross

out various patients and cancel their appointments. (R3-

345) Ms. Poriux saw Dr. Littles turn patients away on a

continuous basis who were sick and described this

situation as being very embarrassing. (R3-345, 346) The

cancellation of patients by Petitioner Littles during

January 21 through February 3 corroborated by Ms.

Poriux and Ms. Thompson is the subject matter of Dr.

Broughton’s letter forwarded to Dr. Littles dated January

22, 1988 and identified as Respondent’s Exhibit 25. Ms.

Thompson stated that Petitioner Littles arbitrarily took

patients off the appointment books and cancelled their

appointments on a continous basis. (R3-345) Ms.

Thompson’s testimony was uncontradicted and virtually

unchallenged by the petitioner. (R3-348, 349)

9

The Chairman of the Area Health Development

Board, Inc., Mr. Tyler Peek, stated that Petitioner Littles

was not terminated because of race or sex. (R3-359, 360)

The chairman testified that Petitioner Littles was not

denied the Medical Directorship because of sex or race.

(R3-357, 358) The chairman testified that patient

encounters and low productivity had a direct impact on

federal funding. (R3-357) He testified he was extremely

concerned with the liability problems Dr. Littles was

creating by turning sick patients away. (R3-359, 360)

Mr. Peek testified that Mr. Holland was responsible

for the administrative affairs of the Mostellar Medical

Clinic and the Area Health Development Board. It was

the chairman’s understanding that if physicians did not

strive to meet the standard number of patient encounters

that the clinics would be closed. (R3-353, 354, 362, 387,

398) The chairman, Tyler Peek stated that if Mr. Holland

allowed low patient encounters or patients to be turned

away, Holland would not be doing his job. (R3-388)

Chairman Peek testified that Mr. Holland makes

recommendations regarding the employment and termin-

ation of all personnel as the Executive Director for the

Area Health Development Board. (R3-354)

Chairman Peek testified that all Area Health

Development Board meetings are held on a regular basis

at which times Mr. Holland attends along with the Board

members. Chairman Peek stated that he concurred with

Mr. Holland’s recommendation that Dr. Broughton be

hired as Medical Director. (R3-358) He stated that all

10

physicians were considered by the Board for the position

of Medical Directorship and that the postition had

originally been offered to Dr. Susan Ashbee, a female

physician prior to being offered to Dr. Broughton. He

stated Dr. Ashbee declined the position. (R3-358) He

stated that Petitioner Littles was not denied the Medical

Director position because of sex. (R3-358) Chairman Peek

testified that petitioner Littles received two pay raises

subsequent to filing her EEOC complaint and that her

contract was renewed subsequent to the filing of the

EEOC complaint and that she remained at the same

position without loss of any benefits or salary until May

of 1988. (R3-387) Chairman Peek concurred with the

recommendation of Mr. Holland to terminate Petitioner

Littles because of low patient encounters and the refusal

to treat patients (R3-360)

Ms. Alphonsine Patterson, Administrative Assistant

to the Executive Director of the Mosteliar Medical Center,

stated that Petitioner Littles was cold and unconscious to

individuals and not a team player. (R3-399) Ms. Patterson

stated that Petitioner Littles was a problem creator. (R3-

399) Ms. Patterson testified that Dr. Broughton met the

qualification of exemplifying leadership potential in the

development of a team approach towards establishing a

comprehensive health service delivery system. (R3-398)

Ms. Patterson testified that Dr. Broughton was fully

qualified for the Medical Directorship and that he was a

kind, considerate person whom the staff fell in love with;

all patients adored him. (R3-397, 398) Ms. Patterson

testified that Dr. Broughton never refused to see any

11

patients and the only doctor that she knew that turned

away patients during her eight years of employment was

Petitioner Littles. (R3-398, 399)

Ms. Patterson testified that Mr. James Holland

always strived to administer the affairs of the clinicin the

best professional manner. (R3-400) She stated that Mr.

Holland does not discriminate racially or sexually

towards any employee and that he was of high character

and a true professional. (R3-400, 401) She testified that at

no time during Dr. Littles appointment did Mr. Holland or

any member of the Board display any racial or sexual

discrimination towards Dr. Littles or to anyone else

employed by the Mostellar Medical Center. (R3-399-401)

The Court’s findings were not contradicted by the

minutes of the Respondent Board, nor the trial exhibits.

The respondents’ trial exhibit number 5, clearly

demonstrates the problems with the petitioner’s low

patient encounters. Further, exhibit 11 representing the

Board minutes of the Area Health Development Board

dated December 19, 1986 accurately reflects the ongoing

problems with the petitioner’s low patient encounters. In

addition, Respondent, Holland notified the petitioner by

letter dated November 21, 1986 (See Respondent’s Exhibit

9) that her on site encounters during the month of October

of 1986 averaged six patients per day which was far from

satisfactory.

The record is replete with an abundance of evidence

regarding the petitioner’s unsatisfactory performance

12

which is contained in live testimony presented by seven

witnesses and through the petitioner’s own testimony

by way of cross-examnination. In addition, the trial

exhibits including Board minutes clearly show an

abundance of documentation concerning low patient

encounters on the part of the petitioner, the intentional

turning away of patients by the petitioner and the refusal

of the petitioner to treat patients on a professional basis.

Dr. Broughton testified that the petitioner had low

patient encounters and that she was warned on numerous

occasions about the low patient encounters. (R2-223) Dr.

Broughton testified that no other physician refused to

treat patients or turned patients away other than the

petitioner. (R3-298-299) Dr. Broughton testified the

petitioner turned patients away on a regular basis which

caused great concern to the Area Health Development

Board in regards to liabilitiy and patient care. (R2-222,

223) These concerns were discussed by the Board and

reflected in the Board minutes on many occasions. (See

Respondents’ Exhibit 11, 14, 15, 17, 22 & 24)

Dr. Alan Shain testified that he recognized Petitioner

Littles might be terminated because of her personality

problems and low patient encounters. (R3-323) Dr. Shain

testified he notified Petitioner Littles about her poor

performance and low patient encounters in the fall of

1986. (R3-311) Dr. Shain testified that Petitioner Littles

was slow in patient delivery. (R3-313)

Without reiterating all of the respondents’ witnesses

testimony, respondents submit that the chairman of the

13

Area Health Development Board, Mr. Tyler W. Peek was

well aware of the many problems concerning Petitioner

Littles prior to the recommendation of her termination.

Chairman Peek testified that patient encounters and low

productivity had a direct impact on federal funding. (R3-

357) Chairman Peek testified that Board meetings are

held on a regular basis, that Mr. Holland attends the

Board meetings and makes recommendations regarding

the employment and termination of all personnel for the

Area Health Development Board. (R3-354) Chairman

Peek said all physicians were considered for the position

of medical directorship by the Board and that the position

had been offerd to a female, Dr. Susan Ashbee who

declined to accept same. (R3-358) Chairman Peek

testified he accepted Mr. Holland’s recommendation to

terminate Littles because of low patient encounters and

the turning away or refusal to treat patients. (R3-360)

Chairman Peek testified that Petitioner Littles did not

strive to meet the criteria of patient encounters

established by the funding authority. (R3-390)

b. The Area Health Development Board, Incor-

porated is a Private Non-Profit Corporation.

Chairman Peek testified that his position was a non-

paying position and the Area Health Development Board

was a non-profit private corporation. (R3-351, 352) The

petitioner herself states on page 7 of petitioner’s writ that

the petitioner accepted a “private practice assignment”’

with the Respondent Medical Center. Further petitioner

states on page 11 of her writ that Dr. Broughton, like the

14

petitioner, was seeking a “private practice assignment”

to complete his National Health scholarship service

obligation. The record reflects that the petitioner and Dr.

Broughton accepted a “private practice assignment” at a

private non-profit corporation known as the Area Health

Development Beard, Inc. The petitioner’s argument as to

why the writ should be granted is fatally flawed. The

facts do not support a finding by the District Court that

the minutes of a non-profit private corporation must be

kept, much less be accurate. In other words, the Area

Health Development Board is not a public agency, board

or a commission. Even if the petitioner’s theory could

possibly hold water (that the District Court’s findings of

fact should not be contrary to facts contained in lawful

minutes of public bodies without showing that the

minutes are in error) such a theory has no relevancy tothe

Court’s findings in this case.

There is no requirement that the Area Health

Development Board maintain minutes. As it stands, the

minutes submitted to the District Court are not in conflict

with the testimony of the witnesses nor the documentary

evidence and trial exhibits introduced during the trial of

this case. No other physician performed in such an

unsatisfactory manner as the petitioner while employed

at the Area Health Development Board. The record

clearly shows that the respondents were concerned with

low patient encounters which could place the respondents

in jeopardy of losing federal funding. (R3-425) (R3-357)

15

Most of the critical facts of this case are contained in

the testimony of the witnesses and the trial exhibits

which include the minutes of the Respondent Board.

These minutes are not required by law to be maintained or

open for public inspection. The petitioner has tried to

mischaracterize the “Best Evidence” rule when, in fact,

the Board minutes do not necessarily contain the “Best

Evidence” of actions taken by the respondents relating to

the termination of the petitioner. No matter how much the

petitioner wishes to take out or context certain

statements, either contained or not contained in Board

minutes, the Board minutes do not provide better

evidence than the other trial exhibits or the testimony of

the witnesses offered during the trial of this case.

The petitioner argues the public confidence in minutes

of public board meetings would be severely shaken

without a rule suggested by the petitioner on page 33 of

the petitioner’s brief. While not conceding the petitioner’s

position regarding this theory, the respondent is not a

public agency, body. commission or a board. The Board

minutes are subject to the same “clearly erroneous”

scrutiny as the rest of the trial exhibits and oral

testimony presented during the trial of this case before

the District Court

16

SUMMARY OF THE ARGUMENT

I.

The Sole Legal Argument Made By The Petitioner

That The Writ Should Be Granted Is “Inherently Flawed”

Because Respondent Is Not A Public Agency Required By

Law To Maintain Minutes Of Its Meetings.

The only legal authority cited in the entire brief of the

peitioner is an Alabama Supreme Court decision which

holds that the City of Bessemer, Alabama, being a public

agency was required by law to maintain minutes of their

meetings. Furthermore, as stated earlier in this brief, the

petitioner herself characterized her appointment at the

Mostellar Medical Clinic as a “private practice assign-

ment.” Finally, it is important to note that the District

Court in this case found no “state action” to support

plaintiffs claim under 42 U.S.C. Section 1983, holding

that the respondents were private entities not acting

under “Color of State Law”

Thus, the petitioner’s entire argument is flawed from

the very beginning.

II.

The District Court's Findings Are Not Clearly

Erroneous.

Apparently, the petitioner argues that documentary

evidence such as the minutes of the respondents are not

17

subject to the “clearly erroneous” standard of appellate

review. The petitioner, however, is wrong. Rule 52(a) of

the Federal Rules of Civil Procedure was amended on

August 1, 1985 to make it perfectly clear that

documentary evidence” is also subject to the “clearly

erroneous’ rule. Even most preamendment' cases held

that the clearly erroneous rule was applicable where there

was both documentary and oral testimony involved.

Taking, the “entire evidence” in this case into

consideration (both oral testimony and documentary

evidence), the District Court findings are not clearly

erroneous.

REASONS FOR DENYING THE WRIT

I. The Sole Legal Argument Raised By The Petitioner

That The Writ Should Be Granted Is “Inherently Flawed”

Because The Respondent Is Not A Public Agency

Required By Law To Maintain Minutes Of Its Meetings.

The petitioner’s sole Reason for Granting the Writ” is

stated on page 18 of her Petition, as follows:

“Tn litigation involving public agencies, boards,

and commissions, a Federal District Court’s

findings of fact should not be contrary to facts

contained in lawful minutes of such public

bodies without a showing that the minutes are

in error.“

18

Unfortunately for the petitioner, however, her entire legal

argument is “inherently flawed” because respondent is a

private, non-profit corporation, not a public body. Unlike

a public body, the respondent is not required to keep

minutes of its meetings. The only legal authority cited in

the petitioner’s entire petition and brief is the Alabama

Supreme Court’s decision of Kimbrell u. City of Bessemer,

380 So.2d 838 (Ala.1980). This case was against the City

of Bessemer and, if the case is read carefully, this

Honorable Court can see that the legal proposition cited

therein is only applicable to public governmental bodies,

such as cities or counties. The petitioner has apparently

forgotten that she herself characterized her appointment

to the Mostellar Medical Center as a “private practice

assignment.” She has also apparently forgotten that the

District Court in this case ruled that because the

respondents were private entities, they did not act under

“Color of State Law” to support a claim under 42 U.S.C.

Section 1983. (The petitioner did not appeal this portion of

the District Court’s ruling to the Eleventh Circuit Court of

Appeals). See Mendez v. Belton, 739 F.2d 15 (1st Cir.

1984) (Court holding that extensive government

regulation and receipt of federal funds does not transform

an otherwise private entity into a governmental

actor).

Thus, petitioner’s sole legal argument for the granting

of the writ is “inherently flawed” from the very beginning

and is thus meritless.

19

II. The District Court’s Findings Are Not Clearly

Erroneous.

Petitioner (rather unusually) herself cites and refers to

the August 1, 1985 amendment to Rule 52 of the Federal

Rules of Civil Procedure on page 15 of her petition. The

respondents, however, fail to understand why the

petitioner cites the 1985 amendment to Rule 52 when the

amendment clearly favors the Respondents’ position in

this case that the District Court’s findings are not clearly

erroneous, notwithstanding that part of the evidence

introduced at the trial of this case was documentary. As

amended Rule 52(a) makes so clear:

“Findings of fact, whether based on oral or

documentary evidence, shall not be set aside

unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to

judge of the credibility of the witnesses.”

In fact, under the present Rule even a case that is trie.

solely or largely on documentary evidence is, neverthe-

less, subject to the “clearly erroneous” standard. See

Steelmet, Inc. v. Caribe Towing Corporation, 842 F.2d

1237 (11th Cir. 1988). Of course, in the present case, we are

dealing with not only documentary evidence but also oral

testimony from many live witnesses who testified at the

trial of this case. Even “preamendment” cases con-

struing Rule 52 hold that the “clearly erroneous” rule

applies when both documentary and oral testimony are

20

involved. See e.g. Anderson v. Property Developers, Inc.,

555 F.2d 648 (8th Cir. 1977). These same “pre

amendment” cases also hold that the reviewing Court

can overturn findings of fact only if a review of “the entire

evidence” leaves the reviewing Court with the definite

and firm conviction that a mistake has been committed.

See e.g. Bull's Corner Restaurant, Inc. v. Director of

Federal Emergency Management Agency, 759 F.2d 500

(5th Cir. 1985).

CONCLUSION

For all of the aforesaid reasons, the Writ should not be

granted because: (1) the petitioner’s sole legal argument is

“inherently flawed” (because the respondent is not a

public entity) and (2) because the District Court's findings

are not “clearly erroneous”, especially in light of the

August 1, 1985 amendment to Rule 52(a).

Respectfully submitted,

Robert C. Campbell, III

Sintz, Campbell, Duke and

Taylor

3763 Professional Parkway

Mobile, Alabama 36609

(205) 344-7241

Attorneys for Respondents

Dated: June 6, 1991