Opposition — Thomas v. Metropolitan Life Insurance

i . |

Suprema Court, Us

FILED

MUG 15 1997

CLERK

+f

No. 97-106

IN THE

SUPREME COURT OF THE UNITED.STATES

OCTOBER TERM, 1997

MARY THOMAS and IVY THOMAS.

Petitioners

VS.

METROPOLITAN LIFE INSURANCE COMPANY

and

DONNA POWELL-THOMAS

Respondents

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

Natalie O. Ludaway

Counsel of Record

LEFTWICH & DOUGLAS, P.L.L.C

1401 New York Avenue, N.W.

Suite 600

Washington, D.C. 20005

(202) 434-9100

Attorney for Respondent Donna Powell-Thomas

i

QUESTIONS PRESENTED

Whether the District Court properly applied the “strict

compliance” standard under 5 U.S.C. Section 8705(a)

where the insured, who on two separate occasions

previously completed and signed his name on the

beneficiary designation forms in the box marked

“Signature of Insured,” naming Respondent Donna

Powell-Thomas as the beneficiary, subsequently

prepared a third beneficiary designation form naming

Petitioners as the beneficiaries and did not sign the

box marked “Signature of Insured.”

Is there a compelling reason for this Court to grant

the petition for writ of certiorari, where the

Petitioners failed to prove by a preponderance of the

evidence that the insured signed the contested form?

Should this Court grant the petition for writ of

certiorari to allow Petitioners to demonstrate that the

insured intended to sign the contested designation of

beneficiary form when they failed to conduct

discovery and develop the record below.

ii

PARTIES TO THE PROCEEDING

Petitioners, Mary Thomas and Ivy Thomas a/k/a Ivy

Dotson were the Plaintiffs in the United States District Court

and Appellants in the United States Court of Appeals.

Respondent Metropolitan Life Insurance Company was a

Defendant in the District Court and Appellee in the Court of

Appeals. Respondent Donna Powell-Thomas was a

Plaintiff/Intervenor in the District Court and Appellee in the

Court of Appeals. Stewart Funeral Home, Inc. was joined as

a Plaintiff in the District Court. Stewart Funeral Home, Inc.,

has not actively participated in the proceedings.

TABLE OF CONTENTS

Questions Presented ............. 0: eee e eee eee i

a) li

er ke Te ala celal 4 « aus.s eens Vv

Opinions Below ..... 2... 6. eee eee ee ees 2

EE EPCOT TTC ECE TEE 2

a” es ee 2

EES 0 ee ee 3

Reasons for Denying the Writ .............-.--.-55: 6

I. The Federal Employees Group Life

Insurance Act, 5 U.S.C. § 8705(a),

Requires Strict Compliance with its

eS RE i bag 4 29:0 6

II. The Designation of Beneficiary

Form of October 13, 1993, is

Invalid as Decedent Failed to Sign

REE CS ae 8

Ill. The Decision below does not

Conflict with the Decision of

the United States District Court

for the Middle District of Florida......... 10

12

ry ha gs wk ao we en

iv

TABLE OF AUTHORITIES

Adams v. Macy,

314 F. Supp. 399 (D.Md. 1970) . .

Burleson v. Burleson,

277 A.2d 647 (D.C. 1971) ......

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ..........

Fair v. Moore,

397 A.2d 976 (D.C. 1979) ......

Guidry v. Sheet Metal Workers

National Pension Fund,

493 U.S. 365(1990) ..........

Huff v. Metropuiitan Life Ins. Co.,

675 F.2d 119 (6th Cir. 1982) ....

In re Estate of Hall,

328 F. Supp. 1305 (D.D.C. 1971)

Matsushita Elec. Industrial Co. v.

Zenith Radio,

475 U.S. 574(1986) ..........

Metropolitan Life Ins. Co. v. Christ,

979 F.2d 575 (7th Cir. 1992) ....

Metropolitan Life Ins. Co. v. Manning,

568 F.2d 922 (2d Cir. 1977) ....

v

litan Life Ins. v. Trainor,

754 P.2d 427 (Colo. Ct App. 1988) ............. 6, 7,8

"Neal v nzalez,

839 F.2d 1437 (Lith Cir. 1988) .................... 7

People v. Stephens,

297 N.E. 2d 224 (Ill. App. 1973) a takers os bes hrc ote ee 9

Plemens v. Diddle-Glaser, Inc.,

224 A.2d 464 (Md. 1966) ......................... 9

Sears v. Austin,

gna ae Gee Ce Gr, 196)... oc ec wdc cee. 6, 7

State v. Schell,

224 N.E.2d 49 (Ind. 1967)... ........ 0000 cece eee 11

United States v. Wexler,

657 F. Supp. 966 (E.D. Pa. 1987) ................... 9

Ward v. Stratton,

ee le S| ce 6

STATUTES AND REGULATIONS

5 U.S.C. Section 8705(a) (1994) .... 0.000000... passim

48 U.SA.. Section EAGT CFOS) 2... cc wc ce cwees 5

28 U.S.C. Section 1335.(1994) .................0--. 4

28 U.S.C. Section 1254(1) (1994) .................04. 2

Pere. Ger, Pe We os ec eee ce See 13

vi

Dene, Oe: a OE er ee ea et 4

LEGISLATIVE MATERIAL

H.R. 2579, 83d Cong., 2d Sess. (1954),

reprinted in 1954 U.S.C.C.A.N. 3052 ................ 6

S. Rep. No. 1064, 89th Cong., 2d Sess. (1966),

pei 2 U.S.CCAN, 2070 2. cece cece 6

No. 97-106

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

MARY THOMAS and IVY THOMAS,

Petitioners

VS.

METROPOLITAN LIFE INSURANCE COMPANY

and

DONNA POWELL-THOMAS

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

Respondent, Donna Powell-Thomas respectfully

requests that Petitioners' request that a writ of certiorari be

issued to review the judgment of the United States Court of

Appeals for the District of Columbia entered on February 24,

1997, be DENIED.

2

OPINIONS BELOW

The Order of the District Court is reported at 921 F.

Supp. 810 (D.C. 1996). The Judgment of the Court of

Appeals is reported at 111 F.3d 963 (D.C. Cir. 1997). The

Court of Appeals’ Orders denying the Petition for Rehearing

and Suggestion for Rehearing en Banc are not reported.

However, complete copies have been included in Appendix A

through Appendix B of the Petition for Writ of Certiorari.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals

for the District of Columbia Circuit was entered on February

24, 1997. A Petition for Rehearing and a Suggestion en

Banc, was filed on March 25, 1997, and denied on June 11,

1997. This Court’s jurisdiction is invoked pursuant to 28

U.S.C. Section 1254(1) (1994).

LEGAL PROVISIONS INVOLVED IN THIS CASE

Federal Employee’s Group Life Insurance Act

(“FEGLIA”), 5 U.S.C. Section 8705(a) (1994).

3

COUNTER-STATEMENT OF CASE

Decedent Gerald C. Thomas, Jr. was employed by the

District of Columbia Lottery and Charitable Games Control

Board (“Board”) at the time of his death on February 2, 1994.

Employees of the Board, including Decedent, were entitled to

participate in the Federal Employees Group Life Insurance

(“FEGLI”) program, which was managed by Metropolitan

Life Insurance Company (“MetLife”). Decedent’s policy

benefits amounted to One Hundred Ninety-Seven Thousand

Dollars ($197,000.00).

On August 21, 1989, and April 7, 1993, Decedent

completed two (2) Designation of Beneficiary forms naming

Respondent Donna Powell-Thomas as the sole beneficiary of

100% of his death benefits. Both Designation of Beneficiary

forms were fully completed and properly executed by

Decedent with Decedent signing his name in cursive in the

box on the forms -- Signature of Insured, witnessed, and

received in the appropriate office prior to Decedent’s death.

Despite the fact that Respondent had initiated divorce

proceedings, Respondent was Decedent’s wife at the time of

his death.

On October 13, 1993, Decedent purportedly filled out

a third Designation of Beneficiary form in which Petitioners

Mary and Ivy Thomas were listed as the beneficiaries of his

FEGLI policy proceeds. The form contains Decedent’s name

and address. It is undisputed that the Decedent did not sign

the Designation of Beneficiary form in the space marked

“Signature of Insured” as required -- this area was left blank.

The only markings on the form which appear to be signatures

are those contained under the spaces marked “Signature of

Witness[es]”. There is no evidence in the record by the

individuals who allegedly signed as witnesses that they

naa Ni

4

observed Decedent "sign" the form. In several places, the

form instructs the policy holder that it must be signed.

Specifically, the instructions on the back of the form state that

“Tall entries on the form except signatures should be typed

or printed in ink (typewriting preferred).” (Emphasis added).

After Decedent's death, Petitioners and Respondent

Powell-Thomas filed claims for the insurance proceeds.

Thereafter, on August 31, 1994, Petitioners filed a Complaint

in the United States District Court for the District of

Columbia to collect the insurance proceeds pursuant to the

purported Designation of Beneficiary dated October 13,

1993. Respondent Donna Powell-Thomas subsequently

moved to and was granted leave to intervene in the suit.

Respondent Powell-Thomas filed a Motion for Declaratory

Judgment on December 19, 1994, based on Decedent’s

properly executed Designation of Beneficiary form dated

April 7, 1993.

Pursuant to 28 U.S.C. Section 1335 and Rule 67 of

the Federal Rules of Civil Procedure, Respondent MetLife

deposited the policy proceeds into the Registry of the District

Court. Upon the Motion of MetLife, Stewart Funeral Home

was added as a party Plaintiff, but has not otherwise

participated in this case.

After fully considering all positions, the District Court

entered an Order on January 2, 1996, denying Petitioners’

Motion for Summary Judgment and Request for Hearing, and

granting Respondent Powell-Thomas’ Motion for Declaratory

Judgment (treated by the Court as a Motion for Summary

Judgment). In its opinion, the District Court, relying on prior

case law requiring “strict compliance” with FEGLIA, ruled

that “the decedent’s acts of printing his name and checking

5

the box indicating that he had signed the form are insufficient

to constitute a signature as contemplated by the statute.” (A.

8a)

The Petitioners, relying upon 28 U.S.C. Section 1291,

appealed to the United States Court of Appeals for the

District of Columbia Circuit on January 29, 1996. The Court

of Appeals affirmed the District Court’s grant of Summary

Judgment to Respondent Donna Powell-Thomas. In its

judgment, the Court of Appeals stated that “[g]iven that the

insured signed his name by writing it in cursive on three of

four designation of beneficiary forms in evidence . . . the

evidence as a whole does not support concluding that

Thomas intended his name . . . to constitute his signature.”

(A. la) Accordingly, the panel determined an opinion was

not needed, and entered its per curiam order on February 24,

1997.

On March 25, 1997, Petitioners submitted a Petition

for Rehearing and Suggestion for Rehearing en Banc to the

United States Court of Appeals. After full consideration, the

United States Court of Appeals for the District of Columbia

Circuit denied both the Petition for Rehearing and Suggestion

for Rehearing En Banc. In its judgment, the Court stated in

pertinent part that:

“[T]}his court affirmed the judgment of the

district court because the evidence proffered in

the summary judgment pleadings failed to

demonstrate the existence of sufficient

evidence from which a reasonable jury could

conclude by a preponderance that the insured

in this case intended to sign the contested form

merely by printing his name in the

informational entries. Appellant would have

the burden at trial of establishing that fact.”

6

(A. 3a) Accordingly, the panel determined that “there [were]

no genuinely disputed issues of material fact,” and entered its

per curiam judgment on June 11, 1997.

meee apnence ne

.

I. REASONS FOR DENYING THE PETITION

THE FEDERAL EMPLOYEES GROUP LIFE

INSURANCE ACT, 5 U.S.C. § 8705(a),

REQUIRES STRICT COMPLIANCE WITH ITS

PROVISIONS.

a nel ese

The trial court found that the form at issue dated

October 13, 1993 had not been signed by Decedent. The

lower court followed the law that FEGLIA requires "strict

compliance" with its provisions. See Ward v. Stratton, 988

F.2d 65, 67 (8th Cir. 1993); Adams v. Macy, 314 F.Supp.

399, 401 (D.Md. 1970); Metropolitan Life Ins. Co. v.

Trainor, 754 P.2d 427, 428 (Colo. Ct. App. 1988); Burleson

v. Burleson, 277 A.2d 647, 648 (D.C. 1971). In summary,

the Petition for writ of certiorari should be denied because

Petitioners submitted no evidence that the Decedent signed or

even intended to sign the October 13, 1993, form when he |

printed his name in the informational entries. _ |

In an effort “to provide low cost group life insurance |

to Federal employees,” Congress established the Federal

Employee’s Group Life Insurance Act (“FEGLIA”) in 1954. )

H.R. 2579, 83d Cong., 2d Sess. (1954), reprinted in 1954

U.S.C.C.A.N. 3052. According to the statute, FEGLI

proceeds are to be paid: “First, to the beneficiary or

beneficiaries designated by the employee in a signed and

witnessed writing received before death in the employing )

office.” 5 U.S.C. § 8705(a). (Emphasis added.) In 1966, ,

Congress amended FEGLIA to include language that “a

designation, change, or cancellation of beneficiary in a will or |

other document not so executed and filed has no force or

ee)

7

effect.” Id. This language was added after the ninth circuit

court held that a beneficiary designated in a will which had

not been executed or filed in accordance with FEGLIA was

valid. See S. Rep. No. 1064, 89th Cong., 2d Sess. (1966),

reprinted in 2 U.S.C.C.A.N. 2070, 2071; see Sears v. Austin,

292 F.2d 690 (9th Cir. 1961), cert. denied, 368 U.S. 929

(1961). Congress amended FEGLIA to make clear that the

statute is to be strictly construed and that “the order of

precedence . . . shall prevail over any extraneous document

designating a beneficiary.” Id.; O’Neal v. Gonzalez, 839 F.2d

1437, 1440 (11th Cir. 1988). Hence, the case at bar turns on

whether, vel non, Decedent signed the October 13, 1993

Form in accordance with FEGLIA.

Congress has forcefully and clearly identified to whom

and how FEGLI benefits are to be paid. For reasons of

administrative convenience, Congress established an inflexible

rule that a beneficiary must be named strictly in accordance

with the statute, irrespective of the equities in the case;

Metropolitan Life Ins. Co. v. Manning, 568 F.2d 922, 926

(2d Cir. 1977). Congress created no exceptions to its

statutory scheme, and "courts should be loath to announce

equitable exceptions to legislative requirements or

prohibitions that are unqualified by the statutory text."

Guidry v. Sheet Metal Workers National Pension Fund, 493

U.S. 365, 376 (1990), remanded, 10 F.3d 700 (10th Cir.

1993). Congress’ general intent in enacting FEGLIA was to

avoid administrative difficulties for the government and

insurance companies, and more importantly, to avoid delay in

paying benefits to the survivors. Id. S. Rep. No. 1064 at

2071; Metropolitan Life Ins. Co. v. Christ, 979 F.2d 575,

578-79 (7th Cir. 1992) (Congress has reacted promptly to

foreclose any T equities in the statute interpreted by federal

courts in order to further federal interests of administrative

8

convenience and avoidance of delay in payment of proceeds

that results from litigation).

It is clear that Congress has chosen to favor

administrative efficiency over equitable considerations.

FEGLIA's order of payment preference sets forth an

inflexible, mandatory procedure which must be strictly

adhered. See Metropolitan Life Ins. Co. v. Christ, 979 F.2d

575 (7th Cir. 1992) (FEGLIA establishes procedure to be

followed regardless of other documents or the equities of the

case); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119 (6th

Cir. 1982) (compliance with FEGLIA policy, not intent of

insured, is controlling); Metropolitan Life Ins. Co. v. Trainor,

754 P.2d 427, 428 (Colo. Ct. App. 1988) (Congress has

indicated its clear intention to make strict compliance with the

statutory provisions mandatory). Courts should not second-

guess or seek to modify that intent.

Even Appellants concede that the Beneficiary

Designation Form is to be governed by the “strict

compliance” standard. Moreover, unlike in Fair v. Moore,

397 A.2d 976 (D.C. 1979), which dealt with whether the

insured's personnel office qualified as an "employing office"

within the meaning of 5 U.S.C. § 8705(a), here, Decedent

failed to properly execute the Form as he did not place his

signature on the document. Consequently, the October 13

Form is defective and cannot be validated through alleged

"internal integrity and consistency" or any other means.

II. THE DESIGNATION OF BENEFICIARY FORM

OF OCTOBER 13, 1993, IS INVALID AS

DECEDENT FAILED TO SIGN THE

DOCUMENT

The sole point of contention is whether Decedent

9

"signed" the beneficiary form in accordance with the FEGLIA

requirements. Decedent made no mark in the box on the

Form where he should have signed. It is undisputed that on

two previous occasions Decedent had properly completed a

designation of beneficiary form and signed his name in cursive

in the signature box on the form. Regardless of Petitioners’

claims, Petitioners failed to demonstrate the existence of

sufficient evidence that Decedent's act of printing his name in

the informational entries of the Form constituted a signature

Petitioners are seemingly arguing that the court below failed

to recognize that something other than a cursive, hand-

written name can act as a signature. Petitioners miss the

point. Petitioners cannot establish that Decedent did the act

of signing the Form. They failed to submit any evidence that

Decedent placed a symbol in the box labeled "Signature of

Insured" which could be construed as a signature. See United

States v. Wexler, 657 F. Supp. 966, 971 (E.D. Pa. 1987),

where "the documents in question were under seal, had

stamped signatures, and bore ink initials."

Had Decedent made a marking in the space rather

than leaving it blank, perhaps Petitioners’ argument have

some credence. Decedent did nothing more than identify

himself by name, social security number, date of birth, and

address, as the insured employee. As the court In re Estate of

Hall, 328 F.Supp. at 1309, stated, "a signature must indicate

something more than the mere act of identifying the maker of

the document in question." Petitioners’ argument that strict

compliance with the requirement that Decedent have signed

the Form in the signature box is unnecessary because

FEGLIA does not require that a particular form be used is

without merit. The fact is that Decedent used a standard

form which clearly indicated the proper place to affix his

signature." In a matter such as this where strict compliance

is mandated, Petitioners cannot seek a “careful application" of

the statute's terms when it suits their position. Decedent

failed to place his signature on the Designation of Beneficiary

form dated October 13, 1996. As such, that Form has "no

force or effect." 5 U.S.C. § 8705(a). In order to refrain from

10

directly contravening the FEGLIA statute as written and as

interpreted, Respondent Powell-Thomas must be

acknowledged as the sole beneficiary of Decedent's insurance

proceeds.

Iii. THE DECISION BELOW DOES NOT |

CONFLICT WITH THE DECISION OF THE

UNITED STATES COURT FOR THE MIDDLE

DISTRICT OF FLORIDA

The decision by the United States District Court for

the District of Columbia does not conflict with the decision

the United States District Court for the Middle District of

Florida. The Florida Court, as well as the District of

Columbia Court applied the requisite standard for issuing

summary judgment. The evidence in the case at bar, unlike

the Florida case, failed to demonstrate the existence of

sufficient evidence necessary to demonstrate any genuine

issue as to material facts. Accordingly, the District Court

granted Respondent Powell-Thomas’ Motion for Declaratory

Judgment.

The entry of summary judgment is appropriate when:

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, show that

there is no genuine issue as to any material fact

and that the moving party is entitled to

judgment as a matter of law.

Fed. R. Civ. Proc. 56(c). This Court has stated that the ‘

moving party always bears the initial responsibility of

informing the district court of the basis for its motion and

identifying those portions of the record which it believes

demonstrate the absence of a genuine issue of material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed.

2d 265, 106 S. Ct. 2548 (1986). This Court has also

explained that summary judgment is appropriate, no matter

eT

11

which party is the moving party, where a party fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial. See Id. at 322. Once the

moving party has carried its burden, the responsibility then

shifts to the nonmoving party to show that there exists a

genuine issue of material fact. The nonmoving party “must

do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Industrial

Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S. Ct. 1348, 89

L. Ed. 2d 538 (1986) (citations omitted)

If a person "intended the mark or the name, printed or

written, when it is imprinted upon the document, to be his

signature and he so adopts it as his act and intends to be

bound thereby, it meets the requirements of the law" and

constitutes a signature. See State v. Schell, 224 N.E.2d 49,

53 (Ind. 1967). There is no evidence in the record that

Decedent adopted some other signature or intended the

October 13, 1993 form to be effective. Indeed, in support of

this Motion for Summary Judgment Petitioners offered

affidavits from two employees at the D.C. Lottery and

Charitable Games Control Board: Carolyn V. Osbourne and

Deborah L. Roberson. Ms. Osbourne and Ms. Roberson only

stated in their affidavits that Decedent, "in their

presence...completed, in his own hand, a Designation of

Beneficiary form. He completed in his own hand the entire

top portion of the form above, "Witness to Signature"...

Petitioners’ only had generalized evidence that Decedent

completed the October 13, 1993 Form. This was insufficient

to show that Decedent intended _ to sign the Form. It did not

contradict the more specific evidence of the Decedent’s

signing two prior forms. The District Court therefore

properly determined that there was no genuine issue as to the

fact that the October 13, 1993 form was not signed.

In order to withstand a summary judgment motion

once the moving party has made a prima facie case to support

its claims, the nonmoving party must come forward with

12

specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. Proc. 56(e). For this reason and because

Petitioners failed to come forward with such facts, relying

instead on bare assumptions and arguments, the District

Court made its decision and the Court of Appeals affirmed

that decision.

Of note, Petitioners Mary and Ivy Thomas suggest

that their due process rights were violated because “due

process necessitates that they have an opportunity to

~ demonstrate the decedent’s purpose and intent in preparing

the [contested] document.” This argument is, at best,

specious. Petitioners had ample time between August 31,

1994, when the Com: '*int was filed, until January 22, 1996,

when the district court issued its opinion, to use numerous

discovery methods to develop their case and demonstrate the

decedent’s purpose and intent. Petitioners chose not to

conduct any discovery. Furthermore, Petitioners suggestion

that the Court of Appeals decision to affirm the District Court

decision without a hearing or oral argument is also flawed. A

Court’s decision whether or not to afford a hearing or oral

argument is discretionary.

CONCLUSION

The United States District Court for the District of

Columbia, as well as, the United States Court of Appeals for

the District of Columbia Circuit correctly decided that as a

matter of law Respondent Donna Powell-Thomas is the sole

beneficiary to the FEGLI policy of the Decedent. The courts

correctly applied the traditional summary judgment standard

and analysis in complete conformity with the law. .

The United States District Court decided in favor of

Respondent Donna Powell-Thomas, based on the record.

The United States Court of Appeals for the District of

Columbia Circuit affirmed the District Court’s decision, ruling

that “the evidence as a whole does not support concluding

that [Decedent] intended his name as printed . . . on the

ee Ty

13

contested form to constitute his signature.” The Court of

Appeals denied the Petitioners’ Motion for Rehearing and

Suggestion for Rehearing en Banc. In denying the motion

the Court stated that:

>

“[petitioners] have failed to demonstrate that

rehearing is warranted. This court affirmed

the judgment of the district court because the

evidence proffered . . . failed to demonstrate

the existence of sufficient evidence from which

a reasonable jury could conclude by a

preponderance that the insured . . . intended to

sign the contested form... .”

(A. la)

The rulings in this matter do not conflict with any

decisions of this Court or any other court. The decisions are

correct in light of applicable legal principles and FEGLIA

case authority. Petitioners only seek another chance to

reargue their case before this Court. Therefore, Respondent

Powell-Thomas requests that the petition be denied.

Respectfully submitted,

Natalie O. Ludaway,

Counsel of Record

LEFTWICH & DOUGLAS, P.L.L.C.

1401 New York Avenue, N.W.

Suite 600

Washington, D.C. 20005

(202) 434-9100

Attorney for Respondent

Donna Powell-Thomas

Date: August 15, 1997.