ORAL HISTORY OF MORTON HOLLANDER
August 9, 2007
This is the second interview of Morton Hollander as part of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewer is Judith S. Feigin. The
interview took place at Mr. Hollander’s home in Northwest Washington on August 9, 2007.
Ms. Feigin: Mr. Hollander, when we left off last time, you had just been speaking with
Professor Gellhorn, who was going to help you get a job with the Railroad
Retirement Board. So I would like to pick up there.
Mr. Hollander: Okay. Actually, I think I may have misled you by saying that Gellhorn called
Lester Schoene. What actually happened was Gellhorn, apparently after
speaking with Schoene, got for me the names of his four assistant general
counsels. I remember there was Joe Freehill and Joe Fanelli and Milt Kramer
And after speaking with them, they arranged for me to have an interview with
Milt Kramer. It turns out that Milt Kramer lived a couple of blocks away from
me in Brooklyn at one time (laughs) so I had a very good interview with him.
Ms. Feigin: When was this?
Mr. Hollander: It was in the spring of ‘41. I was trying to line up a job after I had no success
at all getting into one of the large Gentile firms so I went down to Washington
and saw Kramer. He apologized for my starting pay being $1800 until I
became a member of the bar which did not happen until October of ‘41.
Ms. Feigin: And then it went up to?
Mr. Hollander: $2000
Ms. Feigin: Could you put that in context? Was that a good salary?
Mr. Hollander: The best firms in the district, the Cadwaladers and the other large firms, all
were paying $2600. That’s why I started out with that. But I guess I
considered it a good salary. Actually, it was enough for both of us. Ruth
hadn’t taken a paying job. She was actually working for the Greeting section
of the White House, as a volunteer. If somebody turned seventy, or eighty or a
hundred, she would send out a card with the president’s signature and the
president’s wife’s signature.
Ms. Feigin: Was it really their signatures?
Mr. Hollander: I think so.
Ms. Feigin: They actually signed them in those days?
Mr. Hollander: They used a machine for it, I’m sure.
Ms. Feigin: Since you came down with Ruth, were you married at that point?
Mr. Hollander: I got married in November of ‘41. The first time I came to Washington, I
came alone, of course, to take the interview with Kramer.
Ms. Feigin: And then when did you start working?
Mr. Hollander: I started to work in August of that year. I graduated in May or June, I don’t
remember. And then I started working that summer.
Ms. Feigin: So you took the bar exam in the interim?
Mr. Hollander: I took the bar exam actually before I left Brooklyn. The New York State bar
Ms. Feigin: When you moved to Washington, where did you move to?
Mr. Hollander: Ruth was up in Brooklyn until November of ‘41. She got a job with a bank.
When I came down alone, I roomed with Melvin Richter. He actually was
working at the Railroad Retirement Board too. He was an attorney and he
later came over to the Justice Department and he said I’ve got to move over
there. He would speak to Paul Sweeney. And that’s what happened although
I had to wait about a year because I was at the Interior Department.
Ms. Feigin: Let’s start with the first job at the Railroad Retirement Board. What did you
Mr. Hollander: Actually, I wrote district court briefs. They were involved in a lot of
litigation. It was the first Social Security program in the nation and there were
all sorts of constitutional questions.
Ms. Feigin: Like what?
Mr. Hollander: I don’t remember.
Ms. Feigin: And did you argue the cases?
Mr. Hollander: No. Actually, I was admitted to the bar in New York in October of that year.
I never argued the cases. I would brief them either for Kramer or Fanelli or
Joe Freehill It was a big deal at that time to argue a case even at the federal
Ms. Feigin: And these were all cases in the D.C. district court, or around the country?
Mr. Hollander: There were a couple of cases that were not in D.C. But most of the litigation
that the office’s attorneys handled were cases that were filed in the United
States District Court for the District of Columbia.
Ms. Feigin: And do you remember some of the issues?
Mr. Hollander: No. I was with them for about a year. You know the Railroad Retirement
Board, the Social Security organization, had nothing really to do with the war
effort so they packed up the Railroad Retirement Board and shipped them off
to Chicago. And they’re still there.
D.C. needed war space for outfits like the War Production Board.
They obviously were taking millions into the military service. When they
moved to Chicago, I took an agency job, a wartime-created agency, which was
the Office of Price Administration.
Ms. Feigin: And who was the head of that?
Mr. Hollander: Porter, Paul Porter. My immediate boss was a very good Wisconsin lawyer
named Carl Auerbach. My assignment there was to prepare maximum price
regulations freezing products like a lead bullet rod. The bullet rod was
manufactured and cut into bullet size. The rod itself is. And the prices of that
lead bullet when the hundreds of thousands or millions of soldiers were being
inducted, the price shot up about 300 percent. So my job was to roll back the
prices to March of ‘41. I was there in ‘42. I had to roll back the prices by
regulation, roll back the prices to March of ‘41, and freeze them as of the
March ‘41 price level.
Ms. Feigin: So did you draft the regulations?
Mr. Hollander: Yes. There were so many regulations being drafted. It was just filling in the
names of the products that were involved. And make sure that you’re not too
far off in setting the price, which at that point became the only price that the
product could be sold for. In other words, it was the maximum selling price,
the price that was fixed in the regulation.
Ms. Feigin: Is Paul Porter the one who went on to Arnold and Porter?
Mr. Hollander: Yes. The two largest agencies were OPA, which controlled the maximum
permissible selling price, not only for war materials, but even for sugar and
Ms. Feigin: How large was this agency?
Mr. Hollander: I’m sure we had hundreds of lawyers there. That’s why I wasn’t concerned
when the RRB moved to Chicago. But the other giant agency that was created
was the War Production Board, WPB. They did whatever was humanly
possible to expand production facilities that would be used in the war effort.
Ms. Feigin: So this all started in ‘42 and by this time you were married.
Mr. Hollander: Yes. I was married in November of ‘41.
Ms. Feigin: And where did you get married?
Mr. Hollander: The wedding took place in a rabbi’s study in Brooklyn.
Ms. Feigin: And when Ruth moved down here, where did you live then?
Mr. Hollander: Well, first I had a lot of trouble getting an apartment. It wasn’t a question of
discrimination, although I think that may have entered into it in part.
Certainly that was true when I got back out of the service. But there were so
many people flooding Washington looking for apartments that it was very
difficult to get an apartment. And I got one actually, I think, through a guy by
the name of Samuel Magazine who, among other activities, was president of
the congregation that’s known as Ohr Kodesh today, and that’s on the EastWest Highway and Meadowbrook Drive in Chevy Chase. At that time it was
called The Montgomery County Jewish Center.
Initially, he found a place in Southeast. Barnaby Terrace. With the
baby we needed a two-bedroom apartment, so that worked out satisfactorily.
Of course I had to take a bus. It was about a forty-minute bus ride because I
remember having to change at Georgia and New Hampshire.
Ms. Feigin: Can you tell me what D.C. was like at the time?
Mr. Hollander: D.C. was segregated, not probably as badly as Jackson, Mississippi. But the
buses themselves – First there was no Metro of course. And the buses
themselves allocated the last two rows for black people. And there were some
hassles because sometimes a black person would try to board the bus when the
two rows that had been reserved for them were already fully occupied. So the
bus driver usually told them to stand.
Ms. Feigin: Even if there were empty seats.
Mr. Hollander: Yes. They had to stand towards the back of the bus. That was true in
Washington, not only insofar as buses were concerned, but the precursor to
CVS, the drug store chain, was People’s drugstores. They would serve blacks
but they were not allowed to sit down at a table in the drugstore. They
generally had about four or five small tables. So if you stopped there for
breakfast or lunch you could pick up your stuff at the counter and then sit
down. The black people had to take whatever food they brought out with
them. And I think that persisted until Lyndon Johnson’s time, in the 60s.
A related story, so far as discrimination is concerned – When Bobby
Kennedy was attorney general, I was in his office with about seven or eight
other people. Actually, I think we were discussing a case in which a district
judge in Mississippi had ordered FBI agents to testify in a certain matter
involving voting rights by blacks. This must have been during Johnson’s
administration. And during the course of our meeting, this was, as I say, when
Bobby Kennedy was attorney general, he says, “Dammit,” and he picks up a
phone that’s directly wired to Edgar Hoover’s office because Hoover was
calling him. And he listens to Hoover for about five minutes.
Ms. Feigin: Hoover the head of the FBI?
Mr. Hollander: Yes. And he tells us what the substance of the phone call was. And as
Kennedy described it, the substance of the phone call is that they’re rioting in
the state capital in Jackson, Mississippi, which also houses the Supreme Court
of Mississippi. They were rioting because blacks were not allowed to be in
white latrines in the building. They had segregated the white and black
bathrooms. I thought it was – The way Bobby Kennedy put it, I lost a lot of
respect for him. Because this was a cavalier statement by him and not really
appreciating what was at that time going on in Washington and Lyndon
Johnson’s efforts to curb that.
The case that we were discussing was Hauberg. The United States
Attorney had been told by this federal judge in Mississippi that he was going
to be held in contempt because of his refusal to give the judge his full
cooperation in this voting rights case that the blacks had filed, claiming that
they were being discriminated against and turned away from the polls, that the
questions that were asked of them went far beyond the literacy questions that
they were allowed to ask.
Ms. Feigin: And what was the outcome of that discussion?
Mr. Hollander: I think what happened was that after – and there were people there from the
Civil Rights Division and from the Criminal Division – nothing was decided
by Kennedy. But we went back to our offices and by telephone we decided to
have my section file an application for a writ of mandamus against the district
Ms. Feigin: The Civil Division Appellate section?
Mr. Hollander: Yes. To prevent him from holding Hauberg in contempt. And we did. We
got the writ of mandamus from the Court of Appeals for the Fifth Circuit and
the judge got himself, I think it was an Atlanta – maybe it was a Jackson,
Mississippi law firm – but I don’t know why I feel they went to Atlanta to see
if they could get someone to petition for certiorari in order to overturn the
Fifth Circuit Court of Appeals decision awarding us the writ of mandamus we
sought against the district judge filing contempt charges. So the petition was
filed; we filed an opposition and the Supreme Court denied cert.
The guy I credited most with good work in that case was Dave Rose.
He later started to specialize in discrimination cases. Among his clients, and
not a bad client to have, were a host of professional football players, so he
didn’t have to worry who was going to pay the lawyer fees.
Ms. Feigin: Let’s go back to the war years. You came down to a segregated Washington.
How urbanized was Washington then?
Mr. Hollander: I don’t remember when we got to an apartment on Wayne Avenue in Silver
Spring. It may have been even before we got to that apartment that Magazine
had suggested in Southeast Washington. But not all the streets in Silver
Spring were paved. Including Wayne Avenue. And there were actually cows
parading down the street. But it was livable. The buses were running okay.
Ms. Feigin: So you started working for the OPA –
Mr. Hollander: I was with them only about six months. I was told that it’s probably going to
take about a year before I get into Sweeney’s section at Justice. Mel Richter
was keeping me advised of the progress. So I signed up with the Interior
Department and was assigned, for the most part, to the Bureau of Land
Ms. Feigin: Why did you leave OPA before you got into Justice?
Mr. Hollander: I felt that I’d gotten everything I wanted out of OPA in a sense. I was eager to
stay in Washington after the Board moved to Chicago. And I wasn’t really
sure how long Sweeney would keep me waiting before he offered me a
definite job in appellate at the Civil Division, or the Claims Division, as it was
known at that time. I just thought it would be a safer place to be at. And I
was working on cases I found a lot more interesting than writing regulations
on lead bullet rods, which just meant changing the name of the product and
picking up some regulation that was close to it.
What I did at the Interior Department, particularly in the Bureau of
Land Management, was analyze cases that the Interior Department was going
to bring in court, and try to outline some of the arguments that we were
suggesting to the Justice Department that should be used in order to
accomplish the work we had to do in those cases. This was months before the
cases were filed.
Ms. Feigin: So the litigation was done by the Justice Department?
Mr. Hollander: Oh yes. Interior had no role in litigation at all.
Ms. Feigin: Did you work on any cases that you recall now?
Mr. Hollander: I had some contact with the Tidelands controversy, the claim being that the
states, rather than the federal government, owned the rights to the ocean
waters. I forget whether it’s up to six or seven miles from the shore. States of
course hotly contested the federal government’s claim, but that was one area
that I was working on. Ultimately, the Supreme Court decided that they’re
federal lands and that the federal government not only owned them, but had
the right to lease them to private parties.
Ms. Feigin: How long were you with Interior?
Mr. Hollander: About a year. I must have that backwards because this was after the War
already. Immediately after OPA, I entered the service. I was in the service
from November ‘42 to April ‘46.
Ms. Feigin: And where were you stationed?
Mr. Hollander: I was stationed at probably about ten different posts in the States. The one
post that I spent the most time at, because I was there for two summers, was
Ms. Feigin: Tell me what you did at Cornell.
Mr. Hollander: That was not a soldier’s life. It was better than the average student’s life. We
still had to get up at seven o’clock in the morning and do our calisthenics
exercises. But then a bus would take us over to Willard Straight Hall, that’s
S-t-r-a-i-g-h-t, which was our mess hall, a beautiful building where we had our
meals. I think I may have told you that what I remember most about that
cuisine was Sundays. They would prepare Baked Alaska, which they would
Ms. Feigin: What were you studying at Cornell?
Mr. Hollander: I was studying Russian. It was a very intensive course because they wanted us
to know not only the language, but they taught us the Russian Army marching
songs. We had courses in Russian geography, in English, and in Russian
political history. It was intensive not only as far as the language was
concerned. Classes would end after five o’clock in the afternoon.
Ms. Feigin: What were you expected to do with the Russian?
Mr. Hollander:: Their plan, one that obviously did not materialize, was to prepare us to work
alongside Russian soldiers who were already stationed in Teheran and in
charge of administering the United States Government’s Lend-Lease program.
So the soldiers already there would be working on whatever the Lend-Lease
program covered, whether it was a B-17 bomber or something a lot smaller.
And supposedly the proficiency we were expected to acquire in the language
would enable us to work alongside the Russian soldiers. But that never
materialized. The code name for the project was FAH but I never was able to
find out what that meant or stood for.
Ms. Feigin: Classified?
Mr. Hollander: Probably.
Ms. Feigin: You said last week that you had been at Camp Ritchie. Can you tell me a little
bit about that?
Mr. Hollander: I was at Ritchie actually in ‘45 to ‘46, the last year of my military service.
Ms. Feigin:: And what did you do there?
Mr. Hollander: We took courses in the makeup of the Japanese Army. It was not only a
Russian school. The camp itself was an intelligence school and we learned a
lot about Russian capabilities. We already knew what songs they sang. But
we also studied the makeup of the Japanese Army, I guess to fill in the time,
because nobody had ever suggested that we’d have anything to do with that.
Ms. Feigin: Did you learn the Japanese language?
Mr. Hollander: No. I’m glad I didn’t have to, because my sister Marilyn tried to. She took
some courses at Sarah Lawrence in Japanese. She said they have so many
different languages, the Japanese themselves, and dialects, that even though
she generally sticks to it, she gave that up. (Indistinguishable) her daughter
studied Japanese; it’s a challenge.
Ms. Feigin: So you were in the intelligence service?
Mr. Hollander: Well, actually that’s what my discharge certificate shows but I didn’t know it
until then. Every few months they would send us to a different post. Some of
the posts would just not bother with us. Some of the posts we had to
undertake advanced infantry replacement training. One of the posts that I
wound up at was Lowry Field, an Air Force installation in Denver, Colorado.
And they were teaching us to become B-17, that’s the name of one of the main
bombers, B-17 or B-24 is another, how to work as bombardiers on the B-17.
Ms. Feigin: And did you ever serve in that capacity?
Mr. Hollander: (laughs) No. The whole thing was so silly. I was kicking myself. I really
shouldn’t complain I suppose because Ruth was with me all the time. She was
able to – up at Cornell in particular – we were able to rent a place for eight or
nine months at a time. And I would spend nights there even though I was
supposed to stay in the quarters provided by the service (Feigin laughs) which
was, I think, in Chi Psi fraternity.
Ms. Feigin: You snuck out?
Mr. Hollander: Yes (Feigin laughs). But nobody checked what time I came back.
I’m familiar with most of the gorges around there. Cascadilla Gorge.
Ruth and I both learned to ice skate at Lake Beebe, which is a huge – it’s not
as large as Cayuga – but it’s a huge lake. It was, as far as I can remember the
winters, always frozen over, so it was very good skating.
Oh, I think you should know this. The reason I was selected, as one of
this group of thirty who would study Russian, was because in forms that I
filled out at the time I entered the military service, I said that I speak French
Ms. Feigin: And did you?
Mr. Hollander: At that time I had four years of college French and I could hold my own. My
former son-in-law Reid Feldman – I used to marvel at his ability to speak
French, as he does every day, because ever since Nancy died, he’s been
working in Paris as a French avocat, they call them. He knew by the time he
was finished with high school, he loved that language so, that he was very,
Ms. Feigin: So the fact that you could speak French led them to think you would be able to
Mr. Hollander: I don’t know. I can’t see the transfer there at all.
Ms. Feigin: And the people in your group –
Mr. Hollander: Nobody in the group came from a Russian-speaking home. There were thirty
of us. I don’t remember my co-soldiers too well, but I do remember one guy
who had his wife up there too. He name is David Starr, S-t-a-r-r. His father
owns a chain of newspapers, and he himself I know is connected with that
chain. I forget the name of the chain.
Ms. Feigin: Did this group of thirty go together –
Mr. Hollander: Yes. From post to post.
Ms. Feigin: But nobody ever saw action, none of the thirty?
Mr. Hollander: No. We mustered out and nobody had any war stories to tell. But they were
very slow in releasing us. Very slow. Because V-J Day was the first week in
August of ‘45, and I was not discharged from the service until April of ‘46.
And I was upset about that, because I had a wife. I felt that I could be doing a
hell of a lot more.
Ms. Feigin: Do you remember where you were when you learned that President Roosevelt
Mr. Hollander: No, I don’t remember.
Ms. Feigin: Or when the bombs dropped, do you remember the reaction then?
Mr. Hollander: Oh yes. That’s what we all were waiting for.
Ms. Feigin: So what did you do while you were still in the military but after the War was
Mr. Hollander: In April of ‘46, I must have started looking for a job. I had a wife and a yearold baby. That’s when, of course, I put in a year with the Interior Department.
Ms. Feigin: So when you were released in April of ‘46 is when you came to the Interior
Mr. Hollander: A couple of months after that I guess.
Ms. Feigin: And is that when Ruth was working at the White House?
Mr. Hollander: She was working then at the White House and then she went back when the
kids were a bit older. She continued to work in the same Greetings section.
Ms. Feigin: Can you tell me anything about life at the White House before we get on with
your legal career?
Mr. Hollander: Well, I was invited once over to the White House. In fact I think I have a
picture of Ruth in the Oval Office,
Ms. Feigin: With the president?
Mr. Hollander: No, herself. But I probably was confusing you as well as myself before,
because my stint with the Interior Department did not antedate my military
service; it was subsequent to it. And the OPA, that did antedate military
service because I was with OPA until November of ‘42. And in November of
‘42, I entered the service. I had been writing to people at the Interior
Department while I was still in the service.
Ms. Feigin: And how long did you stay at the Interior Department?
Mr. Hollander: I think it was less than a year before Sweeney came through.
Ms. Feigin: Can you explain how you got in touch with Sweeney and how you got to be on
his radar screen?
Mr. Hollander: There wasn’t much that I had to do. This guy Melvin Richter was very
helpful. He was very eager for me to come over there. He thought I would
like the work and I certainly did. And he paved the way. He would keep on
pestering Sweeney’s office.
Ms. Feigin: And what office was that?
Mr. Hollander: At that time, it was called the Supreme Court section of the Claims Division
because its principal purpose at that time was to write briefs and briefs in
opposition to the grant of certiorari in cases filed by the government’s
opponents in the Supreme Court. Sweeney at first was opposed to the notion
of his people handling arguments even in courts of appeals. He felt that they
should concentrate on being an adjunct to the Solicitor General’s Office, and
he wanted to limit the staff’s work to writing briefs, not arguing cases in the
Supreme Court. Preparing briefs for the solicitor general’s staff to argue in
the Supreme Court.
Another function of the solicitor general, vis-à-vis the Supreme Court
section of the Claims Division, was that every time we took an appeal, or that
the division itself wanted to take an appeal from an adverse trial court decision
to a federal court of appeals, we had to get permission from the solicitor
general. And that of course was doubly true when we wanted to seek
certiorari after the court of appeals had done us in.
Ms. Feigin: How large was this section?
Mr. Hollander: No more than six or seven people.
Ms. Feigin: And was it in proximity to the Solicitor General’s Office?
Mr. Hollander: No, it was still down on the third floor in the main Justice Building, which is
where it still is, I think. It was a very small section. Richter was one of the
mainstays. There was a guy named Morton Liftin, L-i-f-t-i-n, who actually
was probably even of more assistance to me than Richter himself. Richter was
too tied up generally on his cases. And Oscar Davis, who later moved up to
the Solicitor General’s Office, was in the original Supreme Court section.
Ms. Feigin: Was it a new section at the time you joined it?
Mr. Hollander: No. When Kreeger ran it, and Sweeney ran it, it was small. Five, maybe six
attorneys. It underwent a tremendous expansion when Burger came in as
assistant attorney general.
Ms. Feigin: Let’s go back for a minute. Who was Kreeger and when did he run it?
Mr. Hollander: Kreeger ran it before Sweeney did. I don’t know just what period of time
Kreeger was there. But most of his life was spent as general counsel and
probably senior vice president at GEICO.
Ms. Feigin: That followed his time at the Justice Department?
Mr. Hollander: Yes.
Ms. Feigin: Is that the same Kreeger who endowed the Art Museum in Maryland?
Mr. Hollander: Yes. That’s his home. David Lloyd Kreeger. He spelled his last name, if
he’s no longer around, K-r-e-e-g-e-r.
Ms. Feigin: But he was not there when you came?
Mr. Hollander: He left before I got there in ‘48. Very nice guy. I met him only once. I think I
mentioned to you that he came down to speak to one of our alumni meetings.
Ms. Feigin: Is he also the Kreeger of the theater, the Arena Stage Kreeger Theater?
Mr. Hollander: Yes.
Ms. Feigin: So did you get to argue cases?
Mr. Hollander: I got there in ‘48 and I was arguing Supreme Court cases by ‘52.
I think when Burger got in, he didn’t want any of this Claims Division
characterization of the division he was heading up. When he came in, the
division he was assigned to as assistant attorney general was called the Claims
Ms. Feigin: This is Warren Burger?
Mr. Hollander: Yes. He said we had to change that to Civil. He didn’t like that idea. He was,
incidently, a very nice guy.
Ms. Feigin: So there was a Criminal Division and a Claims Division, but there was no
Mr. Hollander: There was a Criminal Division, which had its own appellate staff. Does the
name Bea Rosenberg mean anything to you?
Ms. Feigin: Yes it does, but tell us who she was.
Mr. Hollander: She and a guy by the name of Bob Erdahl, E-r-d-a-h-l, headed up what was in
effect the Supreme Court section of the Criminal Division, which also acted as
an adjunct to the Solicitor General’s Office, like our Supreme Court section
did in the Claims Division. Bea was a very powerful attorney. She was very
Ms. Feigin: So within four years of your getting there you were arguing cases in the
Mr. Hollander: That’s right. I don’t have the dates here. The first case I argued was at 338
U.S. so that was probably 1950.
Ms. Feigin: What can you tell me about some of your arguments? What would you
consider your most significant?
Mr. Hollander: Actually, the case that I was excited about happened to be a workmen’s
compensation case. There is a federal statute on the books, known as the
Longshoremen’s and Harbor Workers’ Compensation Act. And, as its name
implies, longshoremen and harbor workers are the principal beneficiaries of
that compensation system. But in O’Leary v. Brown-Pacific Maxon, which is
in 340 U.S., it started out with this peculiar set of facts. You know basically,
workmen’s compensation cases provide for compensation awards for people
who’ve been injured or killed in connection with some activity arising out of,
or in the course of, their employment. Every state has a workmen’s
compensation statute and they all carry that language. The federal government
has at least three compensation schemes. Longshoremen’s, and then the Civil
Service Employees Compensation Act. The injury has to be tied down to
some connection with employment in order for it to qualify for benefits under
the Longshoremen’s Act or any other compensation act.
O’Leary is the name of the deputy commissioner for the Department of
Labor which administers the Longshoremen’s and Harbor Workers’
Compensation Act, and he awarded compensation benefits in a situation
which at that time, fifty or sixty years ago, was considered to be an
extraordinary award. The decedent was a worker at Brown-Pacific Maxon,
which had a contract to rebuild the Guam naval base. The employees of
Brown-Pacific Maxon were considered eligible for Longshoremen’s and
Harbor Workers’ Compensation Act. I don’t remember the details, but there
was a sufficient tie-in between their work on the Guam base to make them
eligible for compensation benefits.
On a beautiful Sunday, when there was no work at all being done for
Brown-Pacific Maxon, one of the employees, the decedent, went down to the
ocean, there probably being no other recreational activity in which he could
participate on the base itself or in the Brown-Pacific Maxon quarters. He went
down to the ocean and one of his associate workers was already swimming.
But he was having trouble fighting the tides, the guy who was already in the
water, so the decedent stripped himself of whatever clothing he had and went
out to rescue him. And he died in that attempt. The other guy got back to
shore. The guy he went out to rescue got back to shore.
O’Leary had to make a decision. Was the guy’s death, had it arisen out
of or in the course of employment? O’Leary argued that there really was no
other place for them to take on any work or recreational activities. It was
isolated and they were pretty much limited to swimming or bathing in the
ocean. So he awarded death compensation benefits to the survivors on the
theory that the activity that the guy was engaged in, even though it was
recreational, had arisen out of or in the course of employment.
There was some precedent for that because there were many cases on
the books, before the Supreme Court ruled, where an employee is playing in a
baseball game sponsored by his employer and is seriously injured. Almost
invariably, the courts say, well he was where he was because of his
employment. And they don’t have too much trouble connecting that up with
an act arising out of or in the course of employment. So based on those cases,
and taking a very liberal approach, O’Leary awarded benefits to the survivors
of the family of the employee who died while he was trying to rescue his coworker.
O’Leary’s decision was appealed by Brown-Pacific Maxon or the
insurance company for Brown-Pacific Maxon. It was appealed to the local
district court in Guam and the district court affirmed O’Leary’s award. But
then the insurer for Brown-Pacific Maxon decided to take the case up to the
Ninth Circuit Court of Appeals. And there they won, the court of appeals
holding in effect, that’s stretching it too far. This guy, acting like a Good
Samaritan, decided to go in after his co-worker, but there’s no tangible
connection between that Samaritan act, or act of heroism, and any incident
connected with, or arising out of or in course of his employment for BrownPacific Maxon.
Sweeney asked me if I would like to brief the case for the Supreme
Court because we had sought, and got permission from the solicitor general to
petition for certiorari from the Ninth Circuit’s decision adverse to O’Leary. I
did that, and I got sufficiently interested in it, so I told Sweeney if there are no
other calls for arguing this case in the Supreme Court, I’d like to argue it too.
It was fine with him, and at that time, as I pointed out before, and as you’ll see
from this list here (holding list of colleagues), there were probably more cases
being handled by our division lawyers than there were by the solicitor
general’s staff in the Supreme Court.
Ms. Feigin: Why is that?
Mr. Hollander: They were short-handed. You can see all these blank spaces here. These
represent not only people in the Supreme Court section, or the Appellate
section, but people elsewhere in the division.
Ms. Feigin: This is a list of cases and who argued them.
Mr. Hollander: Yes. Richter was of course in my section. McGinnis was not; he led up the
General Litigation section. Colby was an Admiralty lawyer, working in the
Admiralty section. Jayson was in my office, Leslie Jayson. We called Leslie
the King of Torts because he wrote a several-volume work on Torts, not only
the Federal Tort Claims Act. And also Doub, who was the head of our
division. He was Eisenhower’s assistant AG. And Slade was a long-time
member of the Supreme Court section. Samuel Slade.
Ms. Feigin: So just by asking you got the argument?
Mr. Hollander: Yes. Two days afterward I got that blue slip. You know that blue memo slip
that they use at the Justice Department. Signed by Philip Pearlman, who was
solicitor general, saying that you are assigned the oral argument. I was
Ms. Feigin: Was this your first?
Mr. Hollander: I’m not sure. Because Wisner I argued but I really didn’t like that argument.
Ms. Feigin: What was preparation like for an oral argument?
Mr. Hollander: We had to have two moot courts with the rest of the group, five or six
lawyers. We had at least two, sometimes three, moot courts. And they did
cover every aspect of the case. And we also followed that, not with two, but
all court of appeals cases we moot-courted once.
Ms. Feigin: Were you in a mourning coat when you argued?
Mr. Hollander: For the first few cases, yes. I resented that because I had to rent it (both
laugh), although as I remember, back in the early 50s, you could rent formal
mourning wear for four-and-a-half or five-and-a-half dollars. They also
supplied the shirt and the tie.
Ms. Feigin: And do you remember who you argued in front of? Was there anything
dramatic about the argument itself?
Mr. Hollander: I don’t remember anything about the argument itself, other than the fact that
Frankfurter wrote the opinion in our favor. I don’t remember who else was on
the bench, but Warren I’m sure was there. I felt I would get his vote, but I
don’t really remember it. Anyway, it was nice to win because I felt, and this is
true of all cases that I’ve handled, or at least argued, I felt that it was an
important question. You might not think so. A guy goes in, exposes himself
to suicide, in effect, this other guy was having so much trouble, and winds up
with his family being awarded compensation for benefits until the survivors
die. But I thought there was an important issue, and that’s the way I tried to
present it, of administrative law. Here the deputy commissioner, who
supposedly is the brilliant guy so far as figuring out what is or is not an act
arising out of or in the course of employment. He had come down very
heavily in favor of it meeting that test. And then the district court had no
problem in affirming the administrative award by Commissioner O’Leary.
And then the court of appeals takes it upon itself – And the basic question in
most of these administrative law cases was: was there substantial evidence?
Was there substantial evidence to support the deputy commissioner’s
conclusion that this drowning, this death, had arisen out of, or in the course of,
his employment for Brown-Pacific?
Now one thing the courts have been very careful with, is most of them
recognize that that decision as to whether or not there’s substantial evidence
sufficient to support the administrative determination or conclusion, the right
to make that determination is reserved to the administrator, the deputy
commissioner. And the cases had already made clear at that time that if there
is a challenge to the administrative determination, on the grounds of lack of
substantial evidence, the cases made clear that the higher courts are not
allowed to second-guess the commissioner and decide for themselves whether
there was sufficient or substantial evidence to justify the administrative
determination. Put another way, the cases seem to agree that, number one,
that kind of determination, substantiality of evidence sufficient to support the
administrative determination, that’s a test assigned by Congress in these
federal compensation acts to the administrative agency, in this case
Commissioner O’Leary. And the cases also are clear that the courts, in
looking into that question, are not allowed to reweigh the evidence which
O’Leary felt established that the act had arisen out of or in the course of
employment. They’re not allowed to reweigh the evidence in order to come to
a conclusion that there was no substantial evidence, the commissioner having
found to the contrary. Not only is the reweighing of evidence prohibited, but
the court is also prohibited to determine the credibility of the witnesses who
testified before the deputy commissioner. If the deputy commissioner was
satisfied that these guys’ testimony was credible, it’s not open to the courts to
come to a different conclusion.
Actually, O’Leary v. Brown-Pacific was decided the same morning
that a case involving similar questions, as to the integrity of administrative
determinations, was handed down. Another government case. It was argued
by Robert Stern. The name of that case, which was decided along with
O’Leary, was Universal Camera Corp. v. NLRB. But I was obviously very
pleased with the result.
Ms. Feigin: This is probably a good place to stop. With a significant case that had a huge
Mr. Hollander: It did; it did. At least on me (both laugh). I was delighted!
Ms. Feigin: Well beyond you.
Mr. Hollander: It has been cited very, very frequently of course. But you would expect that of
any case that’s been on the books for fifty or sixty years! Particularly if it’s a
Supreme Court Frankfurter opinion.
Ms. Feigin: Thank you very much.
Mr. Hollander: Thank you for listening to me.