text:
1. The lease and contract in this case -- which involve, inter alia, the letting of a Naval Petroleum Reserve for exploitation by a private corporation and a scheme for obtaining fuel oil and elaborate storage facilities for the Navy by means of the royalties of crude oil provided for the United States in the lease -- were without authority of law, and the United States is entitled on that ground to have them cancelled. Pan American Petroleum Co. v. United States, 273 U. S. 456. Pp. 275 U. S. 35, 275 U. S. 53.
2. The facts and circumstances in evidence require a finding that, pending the making of the lease and agreement, the representative of the government (former Secretary of the Interior) who dominated the transactions, and the representative of the lessee corporation, contrary to the government's policy for the conservation of oil reserves for the Navy and in disregard of law, conspired to procure for the company all the products of the reserve on the basis of exchange of royalty oil for construction work, fuel oil, etc.; that the former so favored the latter and the making of the lease and agreement that it was not possible for him loyally or faithfully to serve the interests of the United States or impartially to consider the applications of others for leases in the reserve, and that the lease and agreement were made fraudulently by means of collusion and conspiracy between them. P. 275 U. S. 35.
3. Evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to contradict. P. 275 U. S. 51.
4. Having introduced evidence which, uncontradicted and unexplained, was sufficient to sustain its charge that the lease and contract were procured for the defendant corporation through fraud participated in by the principal representative of the company, the United States was not required to call him as a witness, and his silence makes strongly against the company. It is as if he personally held the lease, were defendant, and failed to testify. P. 275 U. S. 52.
5. While the failure of such representative to testify cannot properly be held to supply any fact not reasonably supported by the substantive evidence in the case, it justly may be inferred that he was not in a position to combat or explain away any fact or circumstance so supported by evidence and material to the government's case. P. 275 U. S. 52.
6. There is no occasion to consider, and the Court does not determine, whether the former Secretary of the Interior was bribed. P. 275 U. S. 53.
7. It was not necessary for the government to show that it suffered or was liable to suffer loss or disadvantage as a result of the lease or that the former Secretary of the Interior gained by or was financially concerned in the transaction. P. 275 U. S. 53.
Held, that the purchasing company must be presumed to have known that there was no law authorizing the lease; that the circumstances disclosed in the case were sufficient to impute to it S's knowledge of the fraud, and that it was not entitled to use or remove the tanks. P. 275 U. S. 54.
9. A pipeline company which, as the lessee's nominee, built a pipeline and related improvements on the naval reserve for transportation of oil therefrom in pursuance of the fraudulent lease, and which was owned half and half by the two companies referred to in the preceding paragraph as owners of the purchasing company therein mentioned, was chargeable with notice that the use of reserve oil to procure the construction of the pipeline was a part of the plan for the unauthorized exhaustion of the reserve; that such use furthered the violation of law and was contrary to the established conservation policy. It stands on no better ground than the lessee would have occupied if it had made the improvements in question. P. 275 U. S. 55.
Court, 5 F.2d 330, dismissing a suit brought by the United States to cancel an oil and gal lease covering a Naval Petroleum Reserve in Wyoming, and to set aside also a supplementary agreement between the same parties. There were prayers for possession of the leased lands, for an accounting, and for general relief. The grounds of the suit were fraud and corruption and lack of legal authority to execute the instruments. The court below sustained the government's contention on the ground of fraud and corruption. Compare Pan American Petroleum Co. v. United States, 273 U. S. 456.
This suit was brought by the United States against the petitioners in the District Court of Wyoming to secure the cancellation of an oil and gas lease made by the United States to the Mammoth Oil Company April 7, 1922, and to set aside a supplemental agreement made by the same parties February 9, 1923. An accounting and possession of the leased lands and general relief were also demanded. The complaint alleged that the lease and agreement were made without authority of law and in consummation of a conspiracy to defraud the United States. The district court held that the transaction was authorized by the Act of June 4, 1920, 41 Stat. 812, 813, found that there was no fraud, and dismissed the case. 5 F.2d 330. The circuit court of appeals sustained that construction of the Act, but, on an examination of the evidence, held that the lease and agreement were obtained by fraud and corruption, reversed the decree, and directed the district court to enter one cancelling the lease and agreement as fraudulent, enjoining petitioners from further trespassing on the leased lands, and providing for an accounting by the Mammoth Oil Company for all oil and other petroleum products taken under the lease and contract. 14 F.2d 705.
oil and gas products thereof, and those from all royalty oil from lands in the naval reserves, for the benefit of the United States: . . . And provided further, that such sums as have been or may be turned into the Treasury of the United States from royalties on lands within the naval petroleum reserves prior to July 1, 1921, not to exceed $500,000, are hereby made available for this purpose until July 1, 1922."
March 5, 1921, Edwin Denby became Secretary of the Navy and Albert B. Fall, Secretary of the Interior. May 31, 1921, the President made an order purporting to commit the administration of all oil and gas-bearing lands in the naval reserves to the Secretary of the Interior, subject to the supervision of the President. The lease and agreement were signed for the United States by Fall as Secretary of the Interior and by Denby as Secretary of the Navy. The evidence shows that the latter was fully informed as to the substance of the transaction, and it is not necessary here to consider the validity or effect of the executive order.
The purpose and scope of the lease and agreement may be indicated by a statement of their principal features. The preamble to the lease stated that it was the duty of the government to secure and store oil for the navy; that the government desired to avoid the loss of oil resulting from the drilling of wells outside the reserve, to create a market and receive the best prices obtainable for royalty oil from the Salt Creek field (adjoining the reserve on the north), to exchange royalty oil from the reserve for fuel oil for the navy, and to secure facilities for the storage of such fuel oil, and that the government proposed to secure these objects by entering into a contract providing for the development and exploitation of the oil and gas within the reserve and for the construction of a pipeline if necessary, for the transportation of royalty oil from the reserve and from the Salt Creek field.
permitted temporarily to suspend operations. And it was provided that, with the consent of the Secretary of the Interior, the lease might be terminated. By a separate agreement dated December 20, 1922, the lessee designated, and the lessor accepted, the Sinclair Pipe Line Company as the nominee of lessee to construct the pipeline, having a daily capacity of 40,000 barrels.
The supplemental agreement of February 9, 1923, relates to storage tanks to be provided by the lessee. It deals with four projects covering construction work at Portsmouth, Melville, Boston, and Yorktown. The total capacity -- some expressed in tons and some in gallons -- to be constructed at these places was sufficient to store 2,550,000 tons of fuel oil, 37,500 tons and 625,000 gallons of Deisel oil, 26,500 tons and 2,330,000 gallons of gasoline, 13,800 tons and 1,161,000 gallons of lubricating oil. The lessee agreed to provide the tanks and fill them in exchange for royalty oil certificates. The government was not obligated to lessee otherwise than to deliver it oil certificates for redemption in accordance with the lease, and, until the agreement was fully performed, all certificates received by the government were to be used for constructing and filing storage for fuel oil and other petroleum products. And it was further provided that, upon completion of these projects, other facilities for the storage of petroleum products required by the navy were to be constructed and filled by the lessee.
Congress; that the approximate cost of construction so to be done on the Atlantic Coast would be at least $25,000,000, of that, on the Pacific under arrangement with the Pan American Petroleum & Transport Company $15,000,000, and for the whole program, including the products to be put into these fuel depots when constructed, a little in excess of $100,000,000. The cost of the pipeline is not included in any of these figures. It was not deemed to be a facility merely for the development of the reserve, but was desired by those acting for the government for the transportation of oil obtained in that part of the country, to create competition in the oil market, and as an instrumentality for national defense in case of war.
policy of conservation or to relax the safeguards as to fuel depots and contracts for their construction, set by prior legislation. The authority to "store" or to "exchange" does not empower the Secretary of the Navy to use the reserves to regulate or affect the price of oil in the Salt Creek field or to induce or aid construction of a pipeline to serve that territory. And it does not authorize the Secretary to locate the fuel stations provided for or to use the crude oil to pay for them. The Mammoth Oil Company insists that, even if other elements be held unauthorized, the transaction may be sustained as a lease granting the right to take the oil and gas in consideration of the development of the property and delivery of the royalty oils or the equivalent in cash. That view cannot prevail. The percentages of the product to be retained by the lessee includes the consideration, however indeterminate in amount, for the construction of the pipeline. Presumably, the lessee's undertaking to provide it induced the lessor to accept less than otherwise would have been asked or given. Cf. Hazelton v. Sheckels, 202 U. S. 71.
So far as concerns the power under the Act of June 4, 1920, to make them, the lease and agreement now before the court cannot be distinguished from those held to have been made without authority of law in Pan American Petroleum & Transport Co. v. United States, 273 U. S. 456, and the United States is entitled to have them cancelled.
Were the lease and supplemental agreement fraudulently made?
the Mammoth Oil Company; that the negotiations were secret, and the lease was made without competition; that responsible persons and corporations desiring to obtain leases were by Fall, in collusion with Sinclair, denied opportunity to become competitors of the Mammoth Company; that a company known as the Pioneer Oil Company asserted a mining claim to lands in the reserve; that the claim was worthless, and known to be so by Fall; that he had Sinclair procure a quitclaim deed covering the valueless claim, and then, to make it impossible for others to compete with Sinclair's company, Fall made its transfer condition the granting of the lease; that Fall agreed with one Shaffer that Sinclair would cause a part of the leased lands to be set aside for the benefit of Shaffer, and required Sinclair, in order to get the lease for the Mammoth Company, to agree that Shaffer should have a sublease on some of the land; that, before and after the making of the lease, Fall kept the negotiations and execution secret from his associates, the Congress, and the public; and, in general terms, the complaint charges that Fall and Sinclair conspired to defraud the government by making the lease without authority and in violation of law, and to favor and prefer the Mammoth Company over others.
specified royalties amounted in all to $1,687,000, and the leases were granted on that basis. That field was very productive. The reserve compared favorably with it, and was considered very attractive by all having knowledge of the structure. Obviously oil men would be interested in the opening of the reserve and the putting of its product on the market.
of letter for your signature if it meets with your approval, and a form of executive order for the President's signature if it meets your suggestions of yesterday. . . . If they meet with your approval and no changes occur to you, kindly return them with your approval in order that the matter may be taken up with the President."
While this letter contains language calculated to indicate that Denby initiated the matter, the context and attending facts clearly show that Fall was eager to get the authority proposed to be given him.
"The administration and conservation of all oil and gas bearing lands in naval petroleum reserves . . . are hereby committed to the Secretary of the Interior subject to the supervision of the President, but no general policy as to drilling or reserving lands located in a naval reserve shall be changed or adopted except upon consultation and in cooperation with the Secretary or Acting Secretary of the Navy."
order as signed by the President was what Fall wanted, and, so far as concerns the matters here involved, it was not substantially different from the draft he submitted to Denby.
"There will be no possibility of any further conflict with navy officials and this Department, as I have notified Secretary Denby that I should conduct the matter of naval leases, under the direction of the President, without calling any of his force in consultation unless I conferred with himself personally upon a matter of policy. He understands the situation, and that I shall handle matters exactly as I think best, and will not consult with any officials of any bureau of his department, but only with himself, and such consultation will be confined strictly and entirely to matters of general policy."
This exultant declaration that he was in position to handle these vast properties as he pleased discredits Fall. His desire to get control of the reserves and then so proclaim that he had it strongly suggests that he was willing to conspire against the public interest. And that inference is confirmed by his subsequent conduct.
acquiescence. Soon thereafter, Fall left Washington for the West, declaring that he was going to discuss the matter with oil men, "with the idea of working up some such arrangement." He returned about the middle of October. In the meantime, Admiral John K. Robison was appointed to succeed Admiral Griffin as Chief of the Engineering Bureau. Denby directed Robison to take personal charge of all naval petroleum matters. Commander Stuart was relieved from all duties in reference to them. The record shows no reason for the removal of Stuart, but it does appear that Fall favored the change, and that Denby knew it.
Immediately after he was given charge, Robison investigated and found that Reserves Nos. 1 and 2 were suffering loss from drainage, and that Reserve No. 3 was not. He testified that he thought the latter pretty secure, but not absolutely so. He read Fall's letter of July 23, suggesting the use of royalty oil to pay for storage tanks, and he made working arrangements with Fall, which were confirmed by a letter of October 25, prepared by Robison and signed by Denby and sent to Fall. They agreed that Fall was to control the making of all leases for the drilling of wells in the naval reserves and for the disposition of the products; that he would have necessary offset wells drilled in Reserves Nos. 1 and 2, but that the development of Reserve No. 3 would not be undertaken except to protect it against depletion by others; that the navy was to receive fuel oil for royalty oil; that so much of the royalty oil as was not exchanged for fuel oil would be used to obtain storage at places to be designated by the navy, and that the terms of the conversion should be submitted to the navy for approval as to qualities, deliveries, engineering, and other features involved.
he contemporaneously arranged with Doheny the contract that was set aside for fraud in the Pan American case, supra. Under the Secretary, Finney usually acted for the United States in making oil and gas leases, and he was authorized to sign them. But he was not consulted as to the terms of the naval reserve leases made to the Mammoth Company represented by Sinclair or to the Pan American Petroleum & Transport Company represented by Doheny. Robison, through Fall, undoubtedly exerted influence as to the provisions for the pipeline and fuel stations, but Fall acted for the United States and dominated in all matters substantially affecting the value of the lease. And it is significant that, by the terms of the lease, the Secretary of the Interior was authorized to permit the lessee temporarily to suspend production or to assign or terminate the lease.
"The authority granted 'to exchange' is unrestricted; i.e., the act does not specify nor limit what may be taken in exchange for the oil and its products."
Denby approved the opinion, and authorized the proposed exchange. Robison prepared a letter, which Denby signed and sent to Fall, quoting the Judge Advocate General, and stating that Denby desired the Interior Department to make exchanges of crude oil for fuel oil and storage and that Robison had been designated to handle the details.
Then Fall went to his ranch at Three Rivers, N.M., where, December 31, came Sinclair and his counsel, J. W. Zevely, to see him, as the latter testified, on some business connected with Osage Indian leases. They remained two days. The showing as to what transpired concerning the Teapot Dome is meager. The record contains no statement from Fall or Sinclair. H. F. Bain, Director of the Bureau of Mines, was there for a day, but the leasing of the reserve was not mentioned in his hearing. Zevely testified that he was not sure whether the subject was mentioned in his presence, but he thought inquiry was made of Fall as to whether he would lease the Teapot Dome, and that Fall said he was having an investigation made, "and upon that report he would probably determine whether or not he would lease" it. Nothing more is directly disclosed. But, soon after Fall and Sinclair met at the ranch, Fall caused his office force to investigate pending claims to land in the reserve and directed a report to be made to him on his return. Evidently he was considering leasing the reserve as a whole.
that the reserve was being drained, and insisted that it was better to have oil stored where needed than to keep the reserve underground. On receipt of the letter, Fall conferred with Sinclair and directed Arthur W. Ambrose, chief petroleum technologist of the Department, to give him an estimate of the quantity of oil in the reserve and "some idea as to the possibilities of drainage." February 18, Ambrose reported that he estimated 360,270,000 barrels in the Salt Creek field and 135,050,000 barrels in the reserve. His report disclosed no immediate danger of drainage, but only a possibility of loss "during the next six or seven years." About that date, Fall called Ambrose into his office, where Sinclair and Zevely were, and, outlining certain provisions he wanted, directed that a draft of lease be prepared. The work of preparation required two or three weeks, and most of it was done in Zevely's office in Washington. Questions concerning its provisions arising from time to time were referred to Fall and Sinclair; they settled all the terms of the lease. The draft was not submitted to any lawyer in the Interior Department.
to quiet outstanding claims was the result of an understanding with Fall.
February 28, 1922, Sinclair caused the Mammoth Company to be organized. It promptly obtained from the Pioneer and Belgo Companies quitclaim deeds of all the reserve lands, and agreed with them that, in the event of obtaining a lease covering the lands, it would pay them $200,000 within 18 months and $800,000 more out of one-third of the value of the gross production less royalties. March 11, Sinclair wrote Fall submitting the Mammoth Company's formal application for a lease. He said that, if the lease were granted, he would become owner of all the capital stock of the company and would personally guarantee performance of the contract. He submitted a form of lease -- presumably that already prepared in cooperation with Fall -- all inclosed the company's quitclaim deed to the United States of all that was conveyed to it by the Pioneer and Belgo Companies. The record shows that, after he knew that the Mammoth had obtained these deeds, Fall told some who sought to lease the reserve that he would require the lessee to satisfy or clear up outstanding claims. In March, after much time had been spent in preparing the lease, Fall told a representative of a company seeking a lease that he was not ready at that time to consider leasing the reserve, and that, if he did so decide, he would notify the applicant. To one acting for another company, who called about April 10 to submit an offer for a lease, Fall indicated that he would entertain a bid, and said that he would be glad to see representatives of the company at Three Rivers. The lease had been signed by Fall April 7.
when Shaffer demanded more, Fall advised him to see Sinclair, adding "I think you will find him a very reasonable man, and you probably will make satisfactory arrangements with him." Shaffer went to New York and saw Sinclair. The latter said that Fall had told him to reserve 200 acres for Shaffer. Shaffer demanded 600 acres, protracted negotiations between them followed, and it does not appear that any agreement was ever reached. Fall's arrangement with Sinclair for a sublease to Shaffer was extraordinary, and indicates that he had favored the Mammoth Company and that Sinclair on that account had assumed obligations not expressed in the lease.
personal bond theretofore accepted. About April 21, information concerning the lease was given in response to a Senate resolution. There was never any legitimate reason for secrecy.
The Mammoth Company insists that the lease was made to protect the reserve from loss by drainage. The trial court did not pass upon the matter. The circuit court of appeals found there was a remote but not immediate danger. It said (p. 719): "The drainage danger was unquestionably not imminent enough to force immediate action in the leasing of the entire property." That fact is satisfactorily established. A discussion of the evidence is not necessary. The circumstances, terms of the arrangement, and testimony of witnesses show that the lease and agreement were not made to prevent drainage. While the negotiations were pending, Fall and Sinclair indicated that they thought such danger existed, but the evidence warrants a finding that their expressions were made in bad faith, to make it appear that there was a reason for the exhaustion of the reserve and the proposed disposition of its products.
that storage for fuel oil from the reserves might be obtained by exchange of oil or by use of cash received for royalty oil sold. Fall sent Denby a draft of the amendment, and undoubtedly thought its adoption would authorize the exchange of oil for the storage facilities contemplated by the lease. Under the circumstances, his failure to submit the lease to the Attorney General or to any lawyer in his own Department indicates that he knew that the transaction was liable to be condemned as illegal, and that, without regard to the law, he intended to put it through.
papers were so drawn. On the same day, Henry Smith Osler, a barrister of Toronto, caused application to be made to the Secretary of State for Canada for the incorporation of the Continental Company. The next day, he attended a meeting of the same persons and executed the contract on behalf of that company. Its performance was guaranteed as arranged, O'Neil acting for the Prairie Company and Sinclair and Stewart for the Purchasing Company. At the same time, the Continental Company and these guarantors made a contract by which the latter bought all the oil so purchased by the Continental Company and assumed all its obligations. On the price basis specified, the gain of the Continental would be at least 25 cents per barrel, and, under some circumstances, might be more. The Continental was to receive payments for the oil on the 10th of each month, but was not bound to pay the producers before the 15th. So it was assured profit of at least 25 cents per barrel without financing or effort of any kind. As permitted by Canada law, it issued share warrants to bearer with dividend coupons attached; except for qualifying shares, it put out no stock, did no other business, and kept no accounts. All its financial transactions were handled by the New York agency of the Dominion Bank of Canada. There was found no record disclosing who were financially interested in the company or entitled to dividends paid by it. Pursuant to Osler's instructions, the New York agency, on April 13 and April 17, 1922, bought Liberty bonds of $300,000 par value; and, on May 8 following, Osler, as president of the Continental Company, gave the agency a receipt for Liberty bonds of that amount. There were other similar transactions, and, between February, 1922, and June, 1923, like purchases and deliveries amounted to more than $3,000,000. In May, 1923, the Continental Company assigned its contract with the Humphreys' companies to its guarantors for $400,000. Shortly afterwards, it was dissolved, and all its records were destroyed.
May 29, 1922 at Pueblo, Colorado, Fall's son-in law, M. T. Everhart, had $230,500 in Liberty bonds. Of that amount, $200,000 were, by the numbers thereon, conclusively shown to have been included in the lots purchased by the New York agency April 13 and April 17, and receipted for by Osler May 8. Everhart gave the First National Bank of Pueblo bonds for $90,000 to be kept for Fall. He sold the balance to the M.D. Thatcher Estates Company at par and accrued interest. Fall and Everhart owned all the stock of the Tres Ritos Cattle & Land Company. The Thatcher Company had loaned the cattle company $10,000., Fall $15,000, and Everhart $83,000, and for security held all the stock of that company. Out of the proceeds of the bonds, Everhart paid these debts. The balance was distributed to the company, Fall, and Everhart. Out of the $90,000 in bonds given to the bank for Fall, $20,000 were deposited to the credit of the cattle company and the rest was sent to Fall. In October and November, 1922, he sold $20,000 in Texas, and, in May, 1923, $50,000 in New Mexico. The government called Everhart as a witness; but, invoking the rule against compulsory self-incrimination, he declined to give any information as to where he got the bonds.
of his employment as a professional legal adviser, and that the company and its officers were his confidential agents for the better performance of his duties to his client. Application was made to the Supreme Court of Ontario to compel him to testify. That court held he must answer, 56 O.L.R. 307, and its judgment was affirmed on appeal, 56 O. L.R. 635. The district court, on defendants' objections, refused to delay the trial pending final decision in the Canada courts, and thereafter refused to reopen the case in order to get Osler's testimony.
The creation of the Continental Company, the purchase and resale contracts enabling it to make more than $8,000,000 without capital, risk, or effort, the assignment of the contract to the resale purchasers for a small fraction of its probable value, and the purpose to conceal the disposition of its assets make it plain that the company was created for some illegitimate purpose. And the clandestine and unexplained acquisition of these bonds by Fall confirms the belief, generated by other circumstances in the case, that he was a faithless public officer. There is nothing in the record that tends to mitigate the sinister significance attaching to that enrichment.
defendants. Its substance was that Zevely went to New Mexico to see Fall because he did not want to write about the matter; that, in addition to the expense money, Fall wanted $25,000 to buy one or two small ranches there; that Zevely so reported to Sinclair, who said, "If he does, you will have to let him have it;" that later Zevely had Wahlberg, who did not know the bonds were for Fall, send them to the designated bank; that the bonds were not given as a fee, but as a loan from Sinclair; that, after Fall's return from Russia, he gave Zevely a note for $25,000 which the latter still held. Fall allowed the proceeds of the bonds to remain in the bank for a long time, and it does not appear that he ever bought the ranches. It is obvious that this was not a straightforward transaction. Coming so soon after the supplemental agreement made to perfect and carry out the scheme, it strengthens and confirms the inference that Fall had been willing to conspire to defraud the United States; and, taken in connection with other circumstances disclosed, it is persuasive evidence of such a conspiracy between him and Sinclair.
"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
"Where, for instance, probable proof is brought of a state of facts tending to criminate the accused, the absence of evidence tending to a contrary conclusion is to be considered, though not alone entitled to much weight; because the burden of proof lies on the accuser to make out the whole case by substantive evidence. But, when pretty stringent proof of circumstances is produced tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and circumstances as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would tend to sustain the charge. But this is to be cautiously applied, and only in cases where it is manifest that proofs are in the power of the accused, not accessible to the prosecution."
While Sinclar's failure to testify cannot properly be held to supply any fact not reasonably supported by the substantive evidence in the case (Northern R. Co. v. Page, 274 U. S. 65, 274 U. S. 74), it justly may be inferred that he was not in position to combat or explain away any fact or circumstance so supported by evidence and material to the government's case. Runkle v. Burnham, 153 U. S. 216, 153 U. S. 225; Kirby v. Tallmadge, 160 U.S.
379, 160 U. S. 383; Bilokumsky v. Tod, 263 U. S. 149, 263 U. S. 154; Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 273 U. S. 111; Clifton v. United States, 4 How. 242, 45 U. S. 247; Missouri, K. & T. R. Co. v. Elliott, 102 F. 96, 102. As to facts appearing to have been within the knowledge or power of Sinclair, we find that the evidence establishes all that it fairly and reasonably tends to prove.
The complaint did not allege bribery, and, in the view we take of the case, there is no occasion to consider, and we do not determine, whether Fall was bribed in respect of the lease or agreement. It was not necessary for the government to show that it suffered or was liable to suffer loss or disadvantage as a result of the lease or that Fall gained by or was financially concerned in the transaction. Pan American case, supra, p. 273 U. S. 500. It requires no discussion to make it plain that the facts and circumstances above referred to require a finding that, pending the making of the lease and agreement, Fall and Sinclair, contrary to the government's policy for the conservation of oil reserves for the navy, and in disregard of law, conspired to procure for the Mammoth Company all the products of the reserve on the basis of exchange of royalty oil for construction work, fuel oil, etc.; that Fall so favored Sinclair and the making of the lease and agreement that it was not possible for him loyally or faithfully to serve the interests of the United States or impartially to consider the applications of others for leases in the reserve, and that the lease and agreement were made fraudulently by means of collusion and conspiracy between them.
from the government. It claims that it relied on the validity of the lease and became the owner of the tanks as licensee and grantee of the lessee, and entitled to maintain them in all respects as the lessee was entitled to do under the lease. It contends that the circuit court of appeals erred in directing it to be restrained from further trespassing upon the reserve, and that, in any event, it should be given opportunity to remove its property. But the Purchasing Company is presumed to have known that no law authorized the making of any such lease. The existence of that arrangement for the exhaustion of the reserve was calculated to excite the apprehensions of one considering such a purchase and put him on his guard, rather than to give assurance of safety. The use of such tanks to take oil from the reserve was a part of the illegal scheme. Moreover, the Purchasing Company was owned half and half by the Sinclair Consolidated Oil Corporation and the Standard Oil Company of Indiana. Sinclair was chairman of the board of the former, and Stewart held like position in the latter. Shortly before the Purchasing Company bought the tanks, these chairmen acted for and controlled it in respect of most important transactions. That and other disclosed circumstances are sufficient to impute to it Sinclair's knowledge of the conspiracy to defraud by which the lease was obtained. It is clear that, in respect of the use and removal of these tanks, the Purchasing Company is in no better position than the Mammoth Company would have occupied if it owned them.
any fraud in its procurement, and made these expenditures in good faith. It contends that it should have opportunity to procure from governmental authorities a right to use the reserve lands for the operation of the pipeline and equipment thereon; and, failing to get a right of way or easement for that purpose, it should be allowed to remove its property. That company was also owned half and half by the Consolidated Company and the Standard Company. It was a mere nominee to do some of the work specified in the lease to be performed by the lessee. It is chargeable with notice that the use of reserve oil to procure the construction of the pipeline was a part of the plan for the unauthorized exhaustion of the reserve; that such use furthered the violation of law, and was contrary to the established conservation policy. The Pipe Line Company stands on no better ground than the lessee would have occupied if it had made the improvements in question.
The tanks, pipeline, and other improvements put upon the reserve for the purpose of taking away its products were not authorized by Congress. The lease and supplemental agreement were fraudulently made to circumvent the law and to defeat public policy. No equity arises in favor of the lessee or the other petitioners to prevent or condition the granting of the relief directed by the circuit court of appeals. Petitioners are bound to restore title and possession of the reserve to the United States, and must abide the judgment of Congress as to the use or removal of the improvements or other relief claimed by them. Pan American case, supra, p. 273 U. S. 510.
* Houston, Tex.; Boston, Mass.; Norfolk, Va.; Pensacola, Fla.; Melville, R.I.; Philadelphia, Pa.; New Orleans, La.; Woods Hole, Mass.; Bath, Me.; Charleston, S.C.; New Haven, Conn.; Rockland, Me.; Annapolis, Md.; Guantanamo Bay, Cuba.; Quincy, Mass.; Indian Head, Md.; Key West, Fla.; Block Island, R.I.; New York, N.Y.; Mobile, Ala.; New London, Conn.; Machias, Me.; Washington, D.C.; Bridgeport, Conn.; Portsmouth, N.H.; Baltimore, Md.; Fall River, Mass.

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JAMES M. DAVIDSON vs. RICHARD S. ROBIE.
CONTRACT. Writ in the Superior Court dated December 19, 1958.
The action was tried before Hudson, J.
James D. St. Clair for the defendant.
CUTTER, J. The declaration in substance alleges an express contract in that Davidson, at Robie's request, rendered service in connection with selling stock of Boston Storage Warehouse Company (Storage), that Robie agreed to pay Davidson "ten per cent . . . of any profit realized by . . . [Robie] from the transaction, and . . . with regard to any sales of stock received by . . . [Robie] in connection with . . . [the] transaction," and that Robie received such a profit but did not account to Davidson. Robie filed a general denial and pleaded the six year statute of limitations. See G. L. c. 260, Section 2 (as amended through St. 1948, c. 274, Section 1). There was a verdict for Davidson of $9,050 taken under leave reserved. Robie saved exceptions to the denial of his motions for a directed verdict and for entry of a verdict under leave reserved. A motion for a new trial was denied upon condition that Davidson remit $750 of the verdict, which he did. To the denial of this motion, also, an exception was saved. The evidence is stated in its aspect most favorable to Davidson.
About 1951 Robie caused Davidson to be employed for six months by a company controlled by Robie. Davidson's salary was $10,000. Robie asked Davidson "to keep his eyes open for deals on the outside. Robie was interested in them and told Davidson he would take care of him."
Robie's company. Robie then owned no stock in Storage. Subsequently Davidson called Robie's attention to other deals, including one relating to Taunton Pearl Works. Robie "had an agreement with . . . [Davidson] to pay him a commission with respect to the Taunton Pearl Works . . . but [claimed that] he had no such agreement" as to Storage. The Taunton Pearl Works deal was put in writing (see fn. 1, infra) at Robie's suggestion. There was "no written agreement . . . [about] the stock of . . . Storage . . . and Robie did not suggest" one.
In 1951, Davidson told Robie that one Babson owned 20% of the stock of Storage and that two other groups could not obtain control because of Babson's interest. Robie, in Davidson's presence, called one Nordblom (who was in one of these groups) and thereafter told Davidson that "Nordblom had agreed to sell his 40% control to Robie. Robie told Davidson that he would make the same deal with him as he had on Taunton Pearl Works." Davidson's recollection was that Robie then proposed as compensation "ten percent of the profit when . . . Robie finally made a profit." [Note 1] Compare the testimony described in fn. 3, infra.
Davidson was aware that "Robie intended to buy all" the stock of Storage. "Davidson was able to have Babson agree to sell" his stock but "had nothing to do with the acquisition of the Nordblom stock." Davidson knew also that Robie was undertaking to purchase all the stock of Storage, that he had made a deposit of $80,000, and that he intended to borrow the balance of the total purchase price of "about a million dollars." Davidson did not assist Robie in getting financing.
of" the then existing Storage corporation (the old company). The deal actually made was one in which Robie became owner of 20% of the stock of a new company. Robie found that he "could not borrow . . . the money necessary to complete the purchase. Rather than lose his deposit he employed . . . [one] Harber to help him find a purchaser for all the shares." Harber "introduced Robie to Messrs. Berdon and Levine," who formed a new corporation (the new company) in May, 1952, to acquire the stock of the old company. The new company "made a tender to all shareholders of the old company to purchase their stock" and eventually acquired all the stock of the old company which was then dissolved. Robie transferred to the new company all his rights to purchase stock in the old company and received back $55,000 of his $80,000 deposit and a 20% stock interest in the new company.
Except for the $25,000 (not returned from the $80,000 deposit) "Berdon and Levine . . . put up all of the money (for the old company stock) . . . approximately $975,000." Davidson "did not bring Berdon and Levine to Robie" and "never talked to . . . Harber." He did talk "with Berdon and Levine before they put money in and explained the warehouse to them and its future possibilities."
money in and explained the . . . possibilities." [Note 5] The indefinite arrangement discussed in the testimony called at most for preliminary investigation by Davidson of possible business ventures, and a disclosure of them to Robie which, if profitable, would give rise to compensation in the nature of a commission, or, perhaps what is sometimes called a "finder's fee," to be paid "to one who brings to . . . [the promisor] a deal out of which he makes money." See Cray, McFawn & Co. v. Hegarty, Conroy & Co. Inc. 27 F. Supp. 93, 97, fn. 1 (S. D. N. Y.) [Note 6] affd. per cur. 109 F. 2d 443 (2d Cir.).
about the Taunton Pearl Works arrangement (see fn. 1, supra).
Even upon this imprecise and scanty evidence (and the evidence of Robie's subsequent conduct), we think the jury were warranted in concluding, at least by reference to the Taunton Pearl Works letter, (1) that Robie asked Davidson to put "deals" before him for consideration and gave Davidson the reasonable expectation that he would be paid for doing so (see Williston, Contracts [3d ed.] Section 36); (2) that, when the Storage deal was mentioned to Robie, he agreed to pay Davidson "ten percent of the profit" from sale of the interest which Robie might acquire in Storage (see fn. 1), to be measured by the "difference between the sale price and the purchase price plus all expenses"; (3) that Robie indicated by his conduct that he expected to carry on negotiations himself (see Bloomberg v. Greylock Bdcst. Co. 342 Mass. 542, 546-547; see also Kuffler v. List, 144 F. Supp. 776, 778-779 [S. D. N. Y.]) and required no further services from Davidson by way of negotiation or otherwise; and (4) that the compensation was to be payable with respect to any profitable sale transaction reasonably and proximately growing out of the Storage proposal brought to Robie by Davidson. See Corleto v. Prudential Ins. Co. 320 Mass. 612, 616-617; Morad v. Haddad, 329 Mass. 730, 734-735; Seckendorff v. Halsey, Stuart & Co. 259 N. Y. 353, 356-357. See also Bloomberg v. Greylock Bdcst. Co. 342 Mass. 542, 547-548, 550.
in any event, were oral and nebulous with respect to a substantial matter as to which careful business people would be likely to make some written agreement, as was done in the Taunton Pearl Works matter. The seemingly unsubstantial services to be performed by Davidson were only sketchily defined. This unusual type of oral arrangement as the cases already cited (see fn. 6, supra) indicate, is unquestionably susceptible of misstatement and exaggeration and can lead to unwarranted claims. All these and other circumstances, however, go only to the weight and reliability of the testimony, matters for the jury, and to the reasonableness of the various permissible inferences to be drawn from it.
2. Robie contends that his acquisition of Babson's 20% holding of shares in the old company was the only effect produced by Davidson's efforts to which the alleged contract for compensation related. This stock was sold to the new company and Berdon and Levine not later than June, 1952 (see fn. 2, supra), more than six years before this action was commenced on December 19, 1958, and thus, Robie says, any claim for compensation was barred by the statute of limitations.
as the completion of the whole Storage transaction) when Robie clearly "finally made a profit," than in 1952 when he received 20% of the shares of the new company, of uncertain value. There is nothing in the circumstances that would permit us to rule as matter of law that the profit was realized in 1952. The jury could reasonably have concluded that the amount of compensation was not determined until the 1957 sale.
3. Robie argues that the trial judge erred in permitting the verdict to stand because its amount is inconsistent with all the evidence about the profit made by Robie, even taking into account the $750 remittitur. There is no serious dispute about the evidence relating to the amount of profit (see fn. 2, supra). On the basis most favorable to the plaintiff, the cost of Robie's interest in the new company was $25,000. Davidson knew that Harber had been paid $7,500, which we regard as clearly a proper deduction from the gross profit on the sale. Without the financing by Berdon and Levine, obtained by Harber, the deal might have been unprofitable. There was no testimony indicating that Robie received any other price than $103,750 for his 20% of the stock in the new company. Robie's profit at most could be found to be $71,250.
the verdict (April 20, 1961) interest upon $7,125 should have been awarded. The verdict computed in accordance with the principles already stated would have been somewhat less than the verdict, as reduced by the remittitur, of $8,300.
There is no occasion for a retrial merely because the remittitur did not reduce the verdict sufficiently. The amount of the verdict is to be recomputed in the Superior Court in accordance with this opinion and judgment is to be entered (see G. L. [Ter. Ed.] c. 235, Section 8) upon the verdict as so recomputed. See Salter v. Leventhal, 337 Mass. 679, 700. See also G. L. c. 231, Sections 124, 127 (as amended through St. 1945, c. 578, Section 1).
4. The exceptions are overruled, subject, however, to recomputation in the Superior Court of the amount of the verdict in accordance with this opinion.
[Note 1] There was in evidence a letter to Robie, relating to the Taunton Pearl Works deal, signed by Davidson (and signed also, "Agreed Richard S. Robie") dated January 23, 1952, describing the proposed transaction. It concluded, "in the event of your sale of the . . . Pearl Works . . . whether the sale is through the sale of your stock or otherwise, I am to receive ten per cent of the profit. In estimating the profit we agree that it shall be the difference between the sale price and the purchase price plus all expenses."
[Note 2] An exhibit showed the profit on the transaction in 250 shares of the new company stock to have been computed as follows:-- Date of sale -- January 21, 1957.
[Note 3] No claim for a commission on the Taunton Pearl Works deal was ever made because on that a loss was suffered. Although Davidson claimed (1) that Robie with respect to the Storage deal had promised him "the same kind of deal as the Taunton Pearl [Works]" and (2) that in the Taunton Pearl Works situation he was "to get 10% of the operating profits . . . if any, and 10% of the profits realized from the sale of Robie's share[s] . . . when . . . sold," Davidson in his testimony did not claim 10% of the operating profits of old Storage.
[Note 4] Other cases include Burke v. Campbell, 258 Mass. 153, 155-156, Adhesive Prod. Co. v. Ridderstrom, 270 Mass. 485, 489-490, and Caggiano v. Marchegiano, 327 Mass. 574, 580. Cf. Weiner v. Pictorial Paper Package Corp. 303 Mass. 123, 131-133.
[Note 5] He does not seem to have intended to associate himself with Robie as a joint adventurer or to incur any exposure to loss himself. Cf. Cardullo v. Landau, 329 Mass. 5, 8; Williston, Contracts (3d ed.) Sections 318-319C; annotation, 138 A. L. R. 968. Cf. also Fitch v. Ingalls, 271 Mass. 121, 125.
[Note 6] In the Cray, McFawn & Co. case, Judge Woolsey quoted, with approval, Berle, Cases and Materials on Corporation Finance, p. 602, "The finder's commission is a fruitful subject of dispute. It is often not agreed on in advance, though good practice would suggest this . . .." See Palmer v. Wahler, 133 Cal. App. 2d 705, 709-710; Jackson v. New Orleans Bd. of Trade, 207 La. 571, 583-584; Towers v. Doroshaw, 5 Misc. 2d (N. Y.) 241, 248-252, and cases cited. In the Towers case the court (at p. 249) points out that, with respect to an alleged agreement, not reduced to writing "to pay compensation to a `finder' for the disclosure of a name alone, without an introduction or negotiations leading to an eventual transaction," it is incumbent on a plaintiff to establish the contract "by evidence of a quality and quantity sufficient to satisfy the court of a clear and unequivocal intention by the defendant to pay for the mere disclosure." The resemblances and differences between a "finder" and a broker are illustrated in Shaffer v. Beinhorn, 190 Cal. 569, 573-574, McKenna v. Edwards, 19 Cal. App. 2d 327, 331, Crofoot v. Spivak, 113 Cal. App. 2d 146, 148, Freeman v. Jergins, 125 Cal. App. 2d 536, 547 et seq., and Kuffler v. List, 144 F. Supp. 776, 778-779 (S. D. N. Y.). See also Lindeman v. Textron, Inc. 229 F. 2d 273, 274-275 (2d Cir.), S. C. 143 F. Supp. 955 (S. D. N. Y.); Bittner v. American-Marietta Co. 162 F. Supp. 486, 488-489 (E. D. Ill.); Wells v. Dent, 4 App. Div. 2d (N. Y.) 307, 308-309; Corson v. Keane, 4 N. J. 221, 225-227.
[Note 7] See also Cochrane v. Forbes, 267 Mass. 417, 420; Crowley v. Boston, 342 Mass. 344, 350; Bright v. American Felt Co. 343 Mass. 334, 336; Corbin, Contracts, Sections 1046, 1048. Cf. H. D. Foss & Co. Inc. v. Whidden, 254 Mass. 146, 151-152.

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


(a) The full name and address of each person who has paid compensation for lobbying to the lobbyist or has paid for expenses of lobbying by the lobbyist during the period reported.
(6) all other reportable expenditures made in the performance of services as a lobbyist.
With regard to expenditures for entertainment or hospitality that is primarily recreation, food and beverages, only amounts expended on a state officer or employee or state officer elect or on an employee or officer or officer elect of the judicial branch or on such officer or employee’s spouse shall be considered to be for or in direct relation to lobbying. Notwithstanding the requirements of this subsection and subsection (d), no lobbyist shall be responsible to report any expenditure by the lobbyist’s employer of which such person has no knowledge.
(c) (1) In addition to the information reported pursuant to subsection (b), each lobbyist expending an aggregate amount of $100 or more for lobbying in any reporting period shall report any gift, entertainment or hospitality provided to state officers or employees or state officers elect or to members, members elect or employees of the judicial branch of government. Such report shall disclose the full name of the legislator or legislator elect, member, member elect or employee of the judicial branch or the state officer or employee or state officer elect who received such gift, entertainment or hospitality, the amount expended on such gift, entertainment or hospitality and the date the gift, entertainment or hospitality was provided.
(ii) all members of a political party caucus of the legislature or all members of a political party caucus of either house of the legislature.
(d) Except as provided by subsection (c), whenever an individual lobbyist contributes to a single special event, such lobbyist shall report only the aggregate amount or value of the expenditure contributed by such lobbyist.
(e) Whenever more than one lobbyist is employed by a single employer, the reports required by this section relating to such employer shall be made by only one such lobbyist and that lobbyist shall be the lobbyist who is most directly connected with the particular expenditure or gift, honoraria or payment. No expenditure or gift, honoraria or payment re- quired to be reported by this section shall be reported by more than one lobbyist.
(f) All accounts, records and documents of the lobbyist which relate to every expenditure reported or which should have been reported shall be maintained and preserved by the lobbyist for a period of five years from the date of the filing of such report or statement and may be inspected under conditions determined by the commission.
History: L. 1974, ch. 353, § 55; L. 1975, ch. 272,§ 20; L. 1981, ch. 171, § 45; L. 1983, ch. 173, § 2; L.1987, ch. 199, § 1; L. 1990, ch. 306, § 12; L. 1991,ch. 150, § 44; L. 1997, ch. 155, § 1; L. 2000, ch. 124,§ 3; July 1.
Reporting of lobbyist expenditures. 87-9.
Minimum records to be maintained by lobbyists discussed. 90-26.
Lobbying expenditures; detailed accounts; accounts, records and documents to be kept. 97-18.
Lobbying contracts; maintenance as account, record or document. 97-19.
Records required to be kept by lobbyist, including 2000 HB 2627. 2000-23.


§ 35.600 Use of a sealed source in a remote afterloader unit, teletherapy unit, or gamma stereotactic radiosurgery unit.
§ 35.604 Surveys of patients and human research subjects treated with a remote afterloader unit.
§ 35.605 Installation, maintenance, adjustment, and repair.
§ 35.610 Safety procedures and instructions for remote afterloader units, teletherapy units, and gamma stereotactic radiosurgery units.
§ 35.615 Safety precautions for remote afterloader units, teletherapy units, and gamma stereotactic radiosurgery units.
§ 35.632 Full calibration measurements on teletherapy units.
§ 35.633 Full calibration measurements on remote afterloader units.
§ 35.635 Full calibration measurements on gamma stereotactic radiosurgery units.
§ 35.642 Periodic spot-checks for teletherapy units.
§ 35.643 Periodic spot-checks for remote afterloader units.
§ 35.645 Periodic spot-checks for gamma stereotactic radiosurgery units.
§ 35.647 Additional technical requirements for mobile remote afterloader units.
§ 35.655 Five-year inspection for teletherapy and gamma stereotactic radiosurgery units.
§ 35.657 Therapy-related computer systems.
§ 35.690 Training for use of remote afterloader units, teletherapy units, and gamma stereotactic radiosurgery units.


Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.
Raymond L. Kohler, Austin, TX, for Defendant-Appellant.
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
Appellant Joshua's sentence for distribution of less than one gram of crack cocaine was enhanced from approximately three years to over 12 years (151 months) under the career criminal provision of the Sentencing Guidelines. See U.S.S.G. § 4B1.1. On appeal, he contends that one of his prior convictions — a nolo contendere plea to robbery successfully discharged by a deferred adjudication — should not have been counted against him. Like the district court, we disagree and affirm his sentence.
The career-offender provision of section 4B1.1 applies if the defendant has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." See U.S.S.G. § 4B1.1. The guideline refers to section 4B1.2 for a definition of "two prior felony convictions." Id. Under section 4B1.2, comment. (n. 1), the term "prior felony conviction" means "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." Id. The last clause of the definition does not appear to exclude diversionary dispositions from the ambit of prior convictions.
As Joshua notes, this issue of law is technically novel in the Fifth Circuit. One of our decisions has assumed, without the point being explicitly raised, that a deferred adjudication that otherwise meets the requirements for a felony conviction under the career offender guideline will be counted. See United States v. Kates, 174 F.3d 580, 584 (5th Cir. 1999). Other decisions have held in related sentencing situations that deferred adjudications should be counted as prior felony convictions. United States v. Valdez-Valdez, 143 F.3d 196, 201 (5th Cir. 1998) (defendant's guilty plea to a deferred adjudication was a "prior felony" for purposes of the guideline governing illegal-reentry offenses, section 2L1.2); United States v. Cisneros, 112 F.3d 1272, 1282 (5th Cir. 1997) (deferred adjudication is a "prior conviction" for purposes of the statutory sentencing enhancement under 21 U.S.C. § 841(b)(1)(A)).
Moreover, this court has equated a Texas deferred adjudication with a "prior conviction" in regard to the firearms sentencing guideline, whose interpretation mirrors the guideline in this case. United States v. Stauder, 73 F.3d 56, 56-57 (5th Cir. 1996). In Stauder, the court noted that although the guideline for firearms offenses, U.S.S.G. § 2K2.1, used the term "conviction," it referred specifically to the criminal-history provisions, which include deferred adjudications in calculating a defendant's criminal history score. See U.S.S.G. § 4A1.2. Similarly in this case, section 4B1.2, comment. (n. 4) incorporates the diversionary-disposition provisions of section 4A1.2. And under that guideline, a plea of nolo contendere is counted even if a conviction is not formally entered, section 4A1.2(f), because this result "reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency." Section 4A1.2, comment. (n. 9).
Not only does the direction of our cases, as well as the plain language of the guidelines, support including a deferred adjudication in the career-offender provision, but authorities from other circuits have already arrived at this conclusion. See United States v. Pierce, 60 F.3d 886, 892-93 (1st Cir. 1995); United States v. Jones, 910 F.2d 760, 761 (11th Cir. 1990).
For these reasons, we agree with the district court's interpretation of section 4B1.1 and AFFIRM the sentence. AFFIRMED.


The Affordable Care Act?s Medicaid Expansion has the potential to extend health coverage for many women living with HIV who are currently in a ?catch-22??unable to afford health insurance but not sick enough to qualify for Medicaid. NHeLP?s 10 Reasons the Medicaid Expansion Benefits Women Living with HIV makes the case that the expansion is critical not only for these women, but for state health programs nationwide.
1. Millions of women stand to benefit from the Medicaid Expansion. The Expansion will produce a significant reduction in the number of uninsured women aged 16-64 in each of the 50 states.1 In 2010, 55 percent of the 19 million currently uninsured women in the U.S. had incomes low enough to qualify for coverage under the Medicaid Expansion.2 Additionally, women are high utilizers of health care due to their reproductive and gender- specific health needs, chronic disease burden, and longer average life spans, making the Medicaid Expansion particularly important for women.
1 Ruth Robertson et al., Commonwealth Fund, Oceans Apart: The Higher Health Cost Compared to Other Nations, and How Reform Is Helping at Ex. 2 (July 2012).
2 Kaiser Family Found., Impact of Health Reform on Women?s Access to Coverage and Care 1 (Apr. 2012), http://www.kff.org/womenshealth/upload/7987-02.pdf.
3 Medicaid beneficiaries must also meet citizenship and residency requirements.
4 Kaiser Family Found., Income Eligibility Limits for Working Adults at Application as a Percent of the Federal Poverty Level by Scope of Benefit Package (Jan. 2012), http://www.statehealthfacts.org/comparereport.jsp?rep=54&cat=4.
5 Kaiser Family Found., Women and Health Care: A National Profile 40 (July 2005), http://www.kff.org/womenshealth/upload/women-and-health- care-a-national-profile-key-findings-from-the-kaiser-women-s-health-survey.pdf.
6 Guttmacher Inst., State Policies in Brief: Medicaid Family Planning Eligibility (Aug. 2012), http://www.guttmacher.org/statecenter/spibs/spib_SMFPE.pdf.
7 Rachel Benson Gold, Guttmacher Inst., Stronger Together: Medicaid, Title X Bring Different Strengths to Family Planning Effort (2007), http://www.guttmacher.org/pubs/gpr/10/2/gpr100213.html.
8 42 U.S.C. §§ 1396d(a)(4), 1396u-7(b)(7) (applying family planning requirement to Medicaid benchmark coverage).
9 42 U.S.C. § 1396u-7(b)(5) (Medicaid Benchmark plans must include a minimum of the Essential Health Benefits); see also § 1396u-7(a)(2)(B) (requiring certain vulnerable populations to be provided full Medicaid benefits).
10 For example, default Medicaid rules limit the total cost sharing that low income families can pay and prohibit premiums in most categories of Medicaid (with some exceptions). 42 U.S.C. §§ 1396o(a) and (e).
11 42 U.S.C. §§ 1396o(a)-(c); 13960-1. See also CMS, Dear State Medicaid Director (June 16, 2006).
12 Sheila D. Rustgi, et al., The Commonwealth Fund, Women at Risk: Why Many Women are Forgoing Needed Health Care 3-4 (2009).
13 42 U.S.C. § 1396a(a)(23)(B); 42 C.F.R. § 431.51(a)(3).
14 Kaiser Family Found., supra note 5, at 8.
15 Id. at 8, 12.
16 42 U.S.C. § 1396a(a)(4)(A); 42 C.F.R. § 431.53; 42 C.F.R. § 440.390 (applying the transportation requirements of 42 C.F.R. § 431.53 to Medicaid benchmark and benchmark-equivalent plans).
17 Kaiser Family Found., supra note 5, at 24.
18 See U.S. Const. amend. XIV, § 1; Goldberg v. Kelly, 397 U.S. 254, 266 (1970); 42 U.S.C. § 1396a(a)(3).


Labor Relations News Update April 17, 2014 | Oliver Bell, Inc.
NBC Universal, Inc. (02-CA-115732; 360 NLRB No. 69) New York, NY, April 7, 2014.
The Board granted the General Counsel’s petition for summary judgment in this test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the unit was clarified to include Content Producers in New York, Chicago, and Los Angeles. Charge filed by National Association of Broadcast Employees & Technicians. Chairman Pearce and Members Hirozawa and Schiffer participated.
Patient Care of Pennsylvania, Inc. d/b/a Patient Care (04-RC-101021; 360 NLRB No. 76) Allentown, PA, April 9, 2014.
The Board overruled the Employer’s objections to an election held April 30, 2013, and certified the Petitioner Laborers International Union of North America, Local 1310, as the exclusive collective-bargaining representative of the unit employees. The overruled objections concerned whether the Board agent erred by failing to allow a voter who arrived at the Employer’s facility after the end of the polling period to vote by the parties’ agreement or under challenge. Chairman Pearce, Members Miscimarra and Hirozawa participated.
Park Avenue Investment Advisor, LLC d/b/a Met Hotel Detroit/Troy d/b/a Metropolitan Hotel Detroit-Troy d/b/a Metropolitan Hotel Group, Troy, Michigan, and Hotel Management Advisors – Troy, LLC d/b/a The Metropolitan Group d/b/a The Metro Hotel – Troy, and its successor 5500 Management, LLC, and Quantum Hotels, LLC, Metropolitan Lodging, LLC, Wick Road Hotel Management, LLC, Alter Egos, d/b/a The Metropolitan Hotel, Romulus, Single Employer and/or Alter Egos (07-CA-060921; 360 NLRB No. 75) Troy, MI, April 10, 2014.
The Board granted the General Counsel’s motion for default judgment in this compliance proceeding, on the ground that the Respondents failed to file an answer to the compliance specification. In the absence of an answer, the Board deemed the allegations to be true, and ordered the Respondents to jointly and severally make whole certain named bargaining-unit employees, the Union, and the employee insurance funds, as specified in the compliance specification. The Board’s Order sets forth the specific amounts due each individual and organization. Charge filed by Local 24, UNITE HERE, AFL-CIO. Members Miscimarra, Hirozawa and Johnson participated.
WBI Energy, Inc. (27-RC-119907) Malta, MT, April 7, 2014. Order denying the Employer’s special appeal of the Regional Director’s reopening of the record, sua sponte, for the purpose of taking additional evidence pertaining to the petitioned-for unit and the related issue of single-employer status. The Board found that the Regional Director did not abuse her discretion in reopening the record on her own accord. Petitioner— System Council U-27, International Brotherhood of Electrical Workers. Members Hirozawa, Johnson and Schiffer participated.
Airgas USA, LLC (22-RC-117918) Oakland, NJ, April 7, 2014. No exceptions having been filed to the Hearing Officer’s overruling of a challenge to a ballot in an election conducted December 20, 2013, the Board directed the Regional Director to open and count the challenged ballot, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification. Petitioner – International Brotherhood of Teamsters, Local 701.
Paragon Systems, Inc. (05-RC-119929) Woodlawn, MD, April 8, 2014. No exceptions having been filed to the Regional Director’s overruling of the Petitioner Union’s objections to a mail ballot election held between February 3 and February 18, 2014, the Board adopted the Regional Director’s report and certified the Intervenor Union, International Union, Security, Police and Fire Professionals of America (SPFPA), Local 555 as the exclusive collective-bargaining representative of the employees in the appropriate unit. Petitioner – Governed United Security Professionals.
The Pennsylvania Cyber Charter School (06-RC-120811) Midland, PA, April 9, 2014. Order denying the Employer’s request for review of the Regional Director’s directing of an election among the full-time and regular part-time virtual classroom instructors of a cyber-charter school. In denying review of the Regional Director’s finding that the Employer was not an exempt political subdivision under Section 2(2) of the Act, Panel majority Members Hirozawa and Schiffer noted the similarities between this case and the Board’s decision in Chicago Mathematics & Science Academy, 359 NLRB No. 41 (2012), in which the Board found that a charter school established and operated under Illinois law was not an exempt political subdivision. In dissent, Member Johnson stated that he would grant review, and that the Board should reconsider its interpretation of the test for determining whether a public charter school is an exempt political subdivision pursuant to NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600 (1971), especially in light of the State’s treatment of this school and other charter schools, which indicate that they are within the public school system. Thus, Member Johnson would have the Board fully set forth its reasons for asserting (or not asserting) jurisdiction in this case, in order to develop the law in this extremely important area. Petitioner—PA Cyber School Education Association, PSEA/NEA. Members Hirozawa, Johnson, and Schiffer participated.
Haddad Plumbing and Heating, Inc. (22-RC-123052) Newark, NJ, April 10, 2014. Order finding that the Employer’s Request for Review of the Regional Director’s administrative decision to process the petition raises no substantial issues warranting reversal of the Regional Director’s action, and affirming the Regional Director’s decision. Petitioner- Sheet Metal Workers, Local Union No. 25. Members Hirozawa, Johnson, and Schiffer participated.
Land’s End, Inc. (30-CA-109700) Dodgeville, WI, April 9, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum, finding that the subpoena sought relevant information and described the requested evidence with sufficient particularity. Further, the Board concluded that the Employer had not established any other basis for revoking the subpoena. The Board nevertheless noted that, to the extent that the Employer has already provided information responsive to aspects of the subpoena, it is not required to produce that information again, so long as it accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Chairman Pearce and Members Miscimarra and Schiffer participated.
Remington Lodging & Hospitality, LLC (Decision on Transfer to the Ninth Circuit), Board Case No. 19-CA-032148 (reported at 359 NLRB No. 95) (D.C. Cir., decided Apr. 8, 2014).
In a published decision on the Board’s motion to transfer to the Ninth Circuit, the D.C. Circuit granted the motion and affirmed the Board’s position that the circuit court clerk’s service of a party’s petition for review on the Board does not constitute service “from the persons instituting the proceeding” sufficient to send a circuit race to the Judicial Panel on Multidistrict Litigation.
Under 28 U.S.C. § 2112(a), when two parties file petitions for review of the same Board order in different circuits, the Board will submit the “circuit race” to the Judicial Panel on Multidistrict Litigation (“JPML”) if, within 10 days of the order’s issuance, the Board “receives, from the persons instituting the proceedings,” copies of the petition for review bearing the court’s date stamp. Here, both the union and the employer filed petitions for review—the union in the Ninth, the employer in D.C.—but only the union served a date-stamped copy on the Board within 10 days. The employer served no copy with the Board, but claimed that the service copy the clerk sent to the Board pursuant to 29 U.S.C. § 160(f)—which the Board received within the 10 days—was sufficient to invoke the JPML.
According to the Board, section 2112(a)(1)’s language—requiring receipt “from the persons instituting the proceedings”—means what it says: that “it is the petitioner’s (and not the court’s) service of a court-stamped petition on the agency that is determinative.” Respondent’s Br. 9. This also makes policy sense, the Board contends, because it “rightly places the responsibility in the hands of the party seeking to secure the protection of Section 2112” and allows the agency to “promptly move to secure the proper forum without waiting for a clerk’s office to process and serve the petition for review.” Respondent’s Br. 10. And, as the Board points out, both this and the Second Circuit have, in unpublished opinions, found section 2112(a)(1) unsatisfied where the Board received the petition for review only from the Clerk’s Office. See Omaha World-Herald v. NLRB, No. 12-1005 (D.C. Cir. May 14, 2012); Local Union 36 v. NLRB, No. 10-3448 (2d Cir. Dec. 28, 2010).
The employer’s contrary reading, according to the Court, would render 28 U.S.C. § 2112(a)’s “from the persons instituting the proceeding” meaningless. Thus, “far from being an ‘absurd’ or meaningless formality . . . requiring petitioners to comply personally with section 2112(a) makes a good deal of sense.” The Court therefore granted the Board’s motion and transferred the employer’s petition for review to the Ninth Circuit.
United States Postal Service (01-CA-102755; JD(NY)-17-14) Manchester, NH. Administrative Law Judge Raymond P. Green issued his decision on April 8, 2014. Charge filed by Manchester Area Local 320, American Postal Workers Union, AFL-CIO.
Parsons Electric LLC (18-CA-109253; JD-17-14) Minneapolis, MN. Administrative Law Judge Michael A. Rosas issued his decision on April 8, 2014. Charge filed by International Brotherhood of Electrical Workers, AFL-CIO, Local No. 110.
Random Acquisitions LLC (07-CA-052473; JD-18-14) Grand Rapids, MI. Administrative Law Judge Paul Bogas issued his decision on April 8, 2014. Charge filed by an individual.
M.D. Miller Trucking & Topsoil, Inc. (13-CA-104166; JD(ATL)-15-14) Rockdale, IL. Administrative Law Judge Ira Sandron issued his decision on April 9, 2014. Charge filed by General Teamsters Local Union No. 179, affiliated with International Brotherhood of Teamsters.
MSR Industrial Services, LLC (07-CA-106032 and 106627; JD-20-14) Burton, MI. Administrative Law Judge Arthur J. Amchan issued his decision on April 9, 2014. Charges filed by Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO.
OSF Healthcare System d/b/a St. Francis Hospital (30-CA-105167; JD-19-14) Escanaba, MI. Administrative Law Judge Eric M. Fine issued his decision on April 10, 2014. Charge filed by Michigan Nurses Association.
Earlier this week, the National Labor Relations Board (NLRB) ordered a hospital employer to pay the negotiating costs of the union representing its employees as a remedy for the hospital’s unlawful refusal to bargain with the union. In Fallbrook Hospital Corporation dba Fallbrook Hospital and California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), AFL-CIO, the NLRB upheld the decision made by the Administrative Law Judge (ALJ) that the hospital had unlawfully refused to bargain with the union by, among other conduct, failing to provide any proposals or counter-proposal during the first eight bargaining sessions (until it received a full set of proposals from the union), repeatedly leaving bargaining sessions abruptly, and ultimately refusing to respond to the union’s requests for future bargaining dates.
This decision is another example of the current NLRB’s aggressive stance with regard to employer unfair labor practices. However, this decision may also be used offensively by employers under the right circumstances, such as when a union is refusing to bargain or committing other unfair labor practices surrounding collective bargaining.
WASHINGTON (Reuters) – The biggest U.S. business lobbying group is warning the nation’s employers that labor relations could be reshaped by non-union labor groups that are backing high-profile efforts to raise wages and mandate paid sick leave.
The U.S. Chamber of Commerce hosted trade association representatives, labor consultants, attorneys and political staffers on Wednesday for a briefing on “worker centers” as partners and sometimes replacements of traditional labor unions.
“Unions have come to view worker centers as critical to their long-term future,” said Glenn Spencer of the chamber’s Workforce Freedom Initiative.
The term “worker center” is a catch-all used to describe everything from community organizations that provide job training and other services to formal labor union affiliates.
A chamber report released Wednesday says that as these new groups become more entrenched in the labor movement, they could lead to a “significant paradigm shift” in U.S. labor law.
In the United States, labor unions must have the support of a majority of employees in order to bargain on behalf of workers and negotiate with employers. Other countries allow unions to bargain on behalf of only those workers who choose to join, even if they only represent a minority of workers.
But worker centers advocate for workers without going through the traditional union-election process and do not have to show majority support. It could allow the minority representation model to gain traction with U.S. regulators, the chamber said.
“That’s a completely different model than the way our system works currently,” Littler Mendelson attorney Stefan Marculewicz said at the chamber event at its Washington, D.C. headquarters.
Groups such as OUR Walmart, which has planned protests at Walmart stores, and the Restaurant Opportunities Center (ROC), which has pushed for paid sick leave and higher wages in restaurants, show how this could occur, according to the report.
The OUR Walmart protests, typically scheduled on busy shopping days, are meant to pressure Wal-Mart Stores Inc, the country’s largest retailer, to raise workers’ wages. But the group has not shown it has the support of most workers at the protest locations, the chamber report said.
OUR Walmart representatives did not respond to requests for comment on the chamber report.
Marculewicz estimated there are 400 to 500 active U.S. worker centers. Some are grassroots groups that provide language training and healthcare; others target a certain employer or industry. Some are a hybrid of the two.
The AFL-CIO, the largest federation of U.S. labor unions, has since 2006 allowed worker centers to become formal affiliates. In 2011, the National Taxi Workers’ Alliance, one of the first workers to affiliate, became an official AFL-CIO member.
On at least three occasions, organizers for the nation’s second largest union have accompanied OSHA enforcement personnel on inspections at non-union worksites of a janitorial company that has resisted union affiliation. This is an old organizing tactic, repackaged for today’s OSHA, with the agency’s support.
Representatives from the Service Employees International Union (SEIU) participated in recent OSHA inspections at sites where employees of Professional Janitorial Service (PJS) were working, according to a report on watchdog.org. The union, however, had not been recognized as the employees’ representative for collective bargaining at these locations. PJS is the largest non-union janitorial service in Houston and has been at odds with SEIU for the past seven years.
Unions seeking to go on OSHA inspections may want the opportunity to familiarize themselves with the employers’ operations or to show employees they are identified with the federal government. This old union tactic from the 1980s or before was used in the mining industry with MSHA-regulated sites. While union representatives may add little or nothing in the way of expert technical insight to help OSHA, the theory used to support union entry requests, today’s OSHA may not be focusing on this question in facilitating union entry at a union-free site.
A 2013 union letter to OSHA sought clarification on nonemployee, union reps participating in inspections. OSHA responded that the OSH Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.” 29 U.S.C. § 657(e). Therefore, a person affiliated with a union or a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections “for the purpose of aiding such inspection.” 29 U.S.C. § 657(e) (emphasis added).
OSHA also responded that its regulations, 29 C.F.R. § 1903.8, qualify the walkaround right somewhat, “but only … to allow OSHA to manage its inspections…. They allow the Secretary or her authorized representative (the compliance officer) conducting the inspection to determine who can participate in an inspection. See 29 C.F.R. §§ 1903.8(a)-(d).” Further, OSHA believes that union representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences to discuss citations, contest the abatement period in OSHA citations, and participate in contest proceedings. Critics complain that rather than making these pronouncements through a “back-door” process, OSHA should have undertaken notice-and comment rulemaking.
The OSHA visits to the janitorial company resulted in at least $14,000 in fines against PJS. Inspectors were summoned based on complaints that PJS had failed to provide personal protective equipment. The allegations proved meritless, but PJS was cited for minor infractions, including a lack of paperwork, onsite informational posters and a minor training violation, according to a PJS spokesperson. PJS said it had not had an OSHA citation in the previous 26 years.
There are strategic options for union-free employers faced with OSHA site entry demands for union representatives, but they should be closely coordinated by counsel, considering all of the facts and circumstances of the situation.


payment of Dr. Bucksbaum’s medical charges?
provider who failed to properly bill for or substantiate the treatment rendered?
travel for medical treatment causally related to his compensable work injury?
Therefore, I consider this claim withdrawn.
Defendant did not do so.
work injury and medically necessary, Defendant was obligated to pay for them.
5. On or about May 10, 2012 Defendant issued payment in the amount of $2,869.06 to Dr.
of the medical fee schedule, Workers’ Compensation Rule 40.
interest and penalties as specified in the interim order.
employed nor receiving temporary total disability benefits.
9. When Claimant began treating with Dr. Bucksbaum, his mileage to and from Dr.
Bucksbaum’s Rutland, Vermont office totaled 80.4 miles. At some point, Dr.
specialist’s interim order it appears to have been in excess of 600 miles round-trip.
reflect either the diagnosis or the specific treatments provided.
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
in consideration of Claimant’s normal commute distance to and from work.
decided, see, e.g., Yustin v. State of Vermont Department of Public Safety, Opinion No.
material fact are found to exist, see, e.g., Hathaway v. S.T. Griswold & Co., Opinion No.
motion can demonstrate that [it] has evidence sufficient to create an issue.” Tierney v.
Tierney, 131 Vt. 48, 51-52 (1973).
appropriate. Ross v. Times Mirror, Inc., 164 Vt. 13 (1995).
present sufficient evidence to overcome summary judgment at the formal hearing stage.
statute, having been entrusted by the Legislature with its administration. See, e.g., Cyr v.
Insurance Co., 2008 VT 106, ¶8.
certified, and therefore are not ripe for consideration on appeal. See, Morrisseau v.
notice of it to verify its accuracy.” Workers’ Compensation Rule 7.1010.
14. Defendant has made no attempt to explain why it failed to respond to Claimant’s request.
to double payment for the two bills without subsequently issuing a refund to Claimant.
such that reimbursement to someone other than the provider itself will have to be made.
request whatever additional records or reports are necessary. 21 V.S.A. §640a(a)(2).
insufficient at this point to support such an order.
a total of $180.00, representing payment for four treatments he received from Dr.
Sweetland between November 8, 2008 and February 16, 2009. It asserts that because Dr.
entitled to payment under the statute.
§640(a) for paying the charges related thereto.2 V.O. v. Windsor Hospital, Opinion No.
well, and therefore not covered under §640(a).
and (g), further disqualifies him.
consequence I properly can lay at Defendant’s feet.
covered under the workers’ compensation statute. For this reason, and also because Dr.
pay his charges, either directly or by way of reimbursement to Claimant.
he contends that the “normal commute distance” deduction should not have applied.
Opinion No. 11-11WC (May 5, 2011).
the purpose of the rule are clear, and do not allow for the exception Claimant favors.
office.3 Summary judgment in its favor is appropriate, therefore.
that Rule 12.2100 does not permit the interpretation for which Claimant advocates, I need not reach this argument.
obligation to pay Dr. Bucksbaum’s charges themselves, not the mileage charges to and from his office.
DATED at Montpelier, Vermont this 24th day of April 2014.