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Oral History of STEPHEN J. POLLAK
Ninth Interview-February 18, 2010
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Stephen J. Pollak, and
the interviewer is William Schultz. The interview took place at the Goodwin Procter law firm at
901 New York Avenue, N.W., in the District of Columbia on February 18, 2010. This is the
ninth interview.
Mr. Schultz: Steve, in the last interview, you talked about the beginnings of your private
practice and your representation of the NEA and the Mine Workers Fund, and so
I’d like to start this interview by asking you about your representation of the
International Ladies Garment Workers Union. Maybe we should start with you
telling us how that came about.
Mr. Pollak: It leads me to say right at the outset that the most significant relationships for me
in producing law cases and matters and clients was my service in the United
States Government. The National Education Association came to me because of
David Rubin, who was in the Appellate Section of the Civil Rights Division. The
Trustees of the UMWA Health & Retirement Funds came because of a graduate
of the law school at Washington University in St. Louis I hired into the Civil
Rights Division, Monica Gallagher.
The representation of the Garment Workers came as a result of my
relationship with John Doar who was head of the Civil Rights Division when I
served as First Assistant. John was head of a small firm at that time in
New York City and was retained to represent the Garment Workers in an alleged
violent strike matter, allegations that the Union representing workers at the
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Kellwood Plant in Kentucky had engaged in a violent strike in violation of the
law. John was representing the Union. He asked me and a paralegal who had
been in the Civil Rights Division with us, Dorothy Landsberg, to work with him.
So we helped prepare the case, going to Kentucky and interviewing workers and
collecting documents, all with John Doar and the general counsel of the ILGWU
Max Zimny. Ultimately, the allegations respecting the violent strike were
resolved without trial. Thereafter, President Reagan was inaugurated, and his
administration sought to repeal regulations implementing the Fair Labor
Standards Act that proscribed homework in the needle trades. The reason for the
regulations, which were issued originally in 1935, was the conclusion then that
piecework at home in the needle trades by women working at their sewing
machines would, as an economic matter, be in violation of the Fair Labor
Standards Act by paying wages that were below the minimum wage and by not
paying overtime for extra hours worked. Those regulations had endured from
1935 to 1980. With the movement for deregulation that was representative of the
views of President Reagan, the Labor Department issued a notice of proposed
rulemaking to repeal the regulations proscribing homework in the needle trades.
A number of related but smaller trades like jewelry work were also the subject of
the repeal proposal. The Garment Workers Union was the major interested party.
Most of the homeworkers were in the needle trades and their products competed
with those produced by members of the Garment Workers Union. The general
counsel asked me if I would represent the ILGWU in opposing repeal of the
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regulations. I said yes for myself and my firm, Shea & Gardner. I proceeded
over several years to use FOIA to ask for and obtain all of the documents
underlying the representations made in the notice of proposed rulemaking and
then all of the documents that were underlying representations in the outcome of
the rulemaking which was of course to adopt the repealer. We drafted comments
that drew on all of the factual material that the FOIA requests produced and the
factual material undercut the representations in the rulemaking decisions because
the factual information demonstrated the necessity of the rules and the
vulnerability of homeworkers to below minimum wages and excessive hours
without time-and-a-half. After the repeal was adopted, we went to the federal
court with an argument that the outcome of this informal rulemaking was arbitrary
and capricious in violation of the Administrative Procedure Act because the
factual representations and conclusions in the justification statement supporting
the repeal were not borne out by the record. We filed 40 volumes of record
materials supporting our claims.
Mr. Schultz: Were these mostly comments or other kinds of materials?
Mr. Pollak: There were comments but mostly they were factual materials from the files of the
Labor Department that we had obtained by FOIA requests.
Mr. Schultz: Surveys and other kinds of information the Labor Department collected?
Mr. Pollak: Right. And enforcement actions or recommendations for enforcement actions.
The standard for reversing an informal rulemaking is very rigorous. There’s a
presumption that the agency knows what it’s doing, and we presented our case
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before Judge Louis Oberdorfer, and he ruled that the decision repealing the ban on
homework in the eight covered trades was not arbitrary and capricious. We filed
an appeal to the United States Court of Appeals for the District of Columbia
Circuit in a case styled ILGWU v. Donovan, Secretary of Labor Donovan, and
brought to bear this factual record that we had made. I argued the case before a
panel of Judges Wright, Edwards and McGowan. The court, in an extensive
opinion by Judge Edwards, 722 F.2d 795 (1983) (76 comprehensive footnotes),
reversed the decision below, held that the informal rule making rescinding the
restrictions on homework was arbitrary and capricious, and issued instructions to
send the matter back to the District Court which in turn placed it back before the
Labor Department. There were extensive further proceedings. The commitment
to deregulate died hard. Ultimately, deregulation occurred in some of the lesser
trades, but the proscription of homework in the needle trades survived.
Mr. Schultz: That’s a tremendous victory.
Mr. Pollak: The outcome was successful. The case provided me with a fascinating
opportunity to look at the ILGWU, one of the nation’s most venerated and
venerable labor organizations, to work first with president Sol Chaikin, who was
quite a leader in the labor movement, and then with his successor, Jay Mazur.
There were hearings on the Hill about the subject, and I counseled the labor
movement on its presentation. I have a photo of General Counsel Zimny and me
testifying. So it was a real opportunity to serve as a lawyer for the labor
movement which was one of the few opportunities in that vein that I had.
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Mr. Schultz: Did you do any other work for the Garment Workers?
Mr. Pollak: I don’t believe that I did. This representation took years, up to the Court of
Appeals down, more proceedings. I think ultimately we went back to
Judge Oberdorfer with a complaint that the federal government, the
Labor Department, was not heeding the remand order in conducting further
proceedings. I recall that that effort was successful. The requirements for further
rulemaking were enforced by the federal court.
Mr. Schultz: That’s terrific. The next matter I want to ask you about is a project I understand
Secretary Califano enlisted you on regarding regulations enforcing the disability
rights laws. Why don’t we start with my asking you how that came about.
Mr. Pollak: When President Carter came to office and named Joseph Califano to be Secretary
of Health, Education & Welfare, the Secretary found on his desk a set of
regulations implementing Section 504 of a statute that had been adopted by the
Congress proscribing discrimination against the handicapped. That statute was
Section 504 of the Rehabilitation Act of 1973, and of course President Carter
came in in 1976, so during the years since the statute had been on the books, there
had been proceedings before the Secretary of Health Education & Welfare
developing regulations, but the Secretary had been unwilling to adopt the
regulations which had essentially been completed, so they remained in front of
Secretary Califano and the Carter administration. Well as you can expect, the
Secretary had a million things on his desk and was assembling staff and I had
worked with Joe Califano when I served President Johnson in 1967 so he asked
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me if I would undertake to review the draft regulations to draw on my background
in civil rights and other background and recommend to him a set of regulations
which would appropriately implement Section 504.
Mr. Schultz: Was this pro bono or was this paid work?
Mr. Pollak: It was paying work. My recollection is we may have charged something less than
our regular rates as a public service matter, but it was paying work.
Mr. Schultz: Tell me your recollections of Secretary Califano.
Mr. Pollak: Well, I knew him and worked closely with him when I served President Johnson
as White House staff. He was Johnson’s Domestic Policy Chief and I was the
President’s Advisor for the National Capital Affairs which was a domestic field,
of course. I often related to Joe in addressing various issues. My recollection of
him is that he was a very effective assistant to President Johnson, that he had a
very close relationship with President Johnson, that he was in command of the
fields assigned to him, that he dealt on the merits with the matters which brought
me in contact with him, that he was both personable and able to be brusque and
throw his weight around. I thought he respected competence, and my assessment
of the responsibilities that were assigned to me was that I was handling them
competently and he relied heavily on my performance. I had first met him when
Attorney General Ramsey Clark was head of a cabinet task force to assemble a
human relations legislative program for the new Congress for President Johnson,
the Congress entering in 1967. I had been the working head of that task force,
and I made what I would call a full report recommending 50 or 60 different
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human relations possibilities for the President to consider for his domestic
program. I’m sure that was where Califano came to know me. In any event, I
remember meeting a couple of times on the handicap regs as we called them with
Califano as I called him, and my memory is that he said look, I’ve got these
regulations, I want to issue them, I want them to be the right regulations, I want
them to be effective, I want them to be sensible, and I want you to bring me an
appropriate set. It was the handicap community, disability community, I think
that’s the term now used – heads of organizations of deaf persons, heads of
organizations of people in wheelchairs, heads of organizations people with other
disabilities – they were all assembling to pressure Secretary Califano and the
Carter Administration to get these regulations issued. They had various positions
that they wanted reflected in the regs, and I remember believing that my
responsibility was to serve up to Secretary Califano regulations that were the most
appropriate regulations that would implement the statutory purpose and to identify
for him issues that the disability community might be pressing where the draft
regulations that I was proposing didn’t do just exactly what they wanted and to
explain to him why, so that he could decide a range of issues as to the coverage of
the regs. I think that the regulations he issued stood the test of time. There came
later a full statute protecting disability rights which drew heavily on the
regulations and enacted them into statutory law. The amazing thing about
Section 504 which was perhaps six or so lines long was that it proscribed
discrimination on account of disability. It was very constitutional in nature. The
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later statute went on very extensively in identifying particular acts of
discrimination in particular fields that were proscribed. The earlier statute
essentially did the same thing but did it by saying there shall be no discrimination
on account of disability. Drafting the regulations was a very rewarding
assignment to be asked to perform.
Mr. Schultz: Did you meet with outside groups?
Mr. Pollak: The Secretary or his staff probably did so. I recall speaking with my long-time
friend and neighbor Ginny Stern, head of the AAAS Project on Science,
Technology and Disability, who was extremely knowledgeable about the needs of
persons with disabilities, particularly the deaf. I remember relating to top aides of
Secretary Califano, including his special assistant, Ben Heineman, and another
aide, Richard Beatty, who went on to be a major figure in a New York law firm.
We had a good working relationship with them. I think I was advantaged in
performing the function because Califano knew my method of working and
conveyed that to his special assistants. I had good people at Shea & Gardner
working with me, Wendy White and Bill Gateota were two of them.
Mr. Schultz: How did you go about this? Did you review the comments or materials they gave
you?
Mr. Pollak: Yes. We reviewed the full record that was before the prior secretary and the draft
regulations and reviewed positions that were being urged by the disability rights
groups in time present. There could have been new submissions to Califano after
he took office. I think the work was done on the record, our work – Shea &
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Gardner’s work – was done on the record that had been made before the
Republican Administration that was going out.
Mr. Schultz: Did you produce a written product?
Mr. Pollak: We produced a whole set of regulations and supporting memoranda that we then
transmitted to the Secretary.
Mr. Schultz: Did you make a presentation to them?
Mr. Pollak: I’m sure we did. The Secretary seems to have issued the regs in April 1977,
April 28, 1977. Secretary Califano undoubtedly took office some time in January
of 1977, and we worked for a couple of months and put out the regulations.
Today, a Secretary wouldn’t even be confirmed by then.
Mr. Schultz: Right. That’s pretty quick work.
Mr. Pollak: I had two other assignments relating to disability. I undertook representation in
the Supreme Court of a man named Walter Camenisch. He was deaf, and he was
a graduate student at the University of Texas at Austin. He had asked for a
signing person to be present in his classes and said he had a right under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, to the sign
language interpreter. That was denied to him, and he brought a lawsuit that
ultimately wended its way to the Supreme Court. I represented him pro bono in
the Supreme Court and worked with the National Association of the Deaf Legal
Defense Fund and the Mental Health Law Project in doing so. I argued that case
before the Court. Unfortunately, the Court was constricting the scope of private
rights of action inferred from federal statutes which did not expressly provide
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such a right. As a tactical matter, we felt constrained to limit our substantive
position on the reach of the federal statute and regulations in order not to risk a
restrictive decision on whether Camenisch had any right at all to sue. We
survived without an adverse decision, but we were not able to obtain a ruling
upholding the protections of deaf students afforded by Section 504. The Court, in
an opinion by Justice Stewart, held the question whether the preliminary
injunction ordering the University to supply the interpreter was moot because its
terms had been fully complied with; vacated the decision below in favor of
Camenisch, and remained for trial on the issue of who should pay for the
interpreter. The majority opinion did not discuss the private right of action
question. 451 U.S. 390 (1981).
The other representation in the disability rights area is this: There came to
me some clients, two different sets of clients, who were dyslexic and needed some
additional time to take the Law Aptitude Test. It was in the very early stages of
that issue being presented and resolved by the testing companies, and there was a
great sensitivity by the testing company, not inappropriately, to avoid giving
undue advantage to students with a disability as against students who had to meet
all the requirements. On the other hand, there was a willingness, if the case was
made, for dispensation to be given. I had two of those students, or applicants, as
clients. I remember dealing with John Wodach who was head of the Disability
Rights Section of the Civil Rights Division. They were very pressured
representations because the date of the exam was pressing, pressing, pressing, and
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we were rushing to get the matter resolved so my clients could take the test. I’ve
always been surprised at the vagaries of practice because I was there at the
creation of these regs and really had quite a foundation, but I never developed a
disability rights practice other than those three representations.
Mr. Schultz: What happened in the representations?
Mr. Pollak: We were successful, and the students took the examination with a dispensation
and went on to gain admission to law school. By the time admission came, at
least in one case the individual decided not to study law. But they did take the
test with a dispensation.
Mr. Schultz: Did you go to court?
Mr. Pollak: In one case we brought a lawsuit, which was filed in the United States District
Court in Greenbelt, Maryland, seeking a preliminary injunction. The lawsuit was
against the testing company, ETS. ETS was very reluctant to risk a litigated
decision, and we were able to work out a favorable settlement.
Mr. Schultz: That area has really developed.
Mr. Pollak: It has, much, I think, to the advantage of the nation because members of the
disability community are getting jobs, getting educations. People that have great
potential are being productive. There have been a lot of advances and certainly a
great enlightenment of the nation as to people with disabilities.
Mr. Schultz: And a lot of it due to lawyers.
Mr. Pollak: I think so. A lot of it due to the rule of law, which has been a big concern of mine
throughout my practice and life.
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Mr. Schultz: Is there any other work in the civil rights area in private practice that comes to
mind?
Mr. Pollak: I’m a mediator on the Panels of the United States District Court and the U.S.
Court of Appeals here in the District of Columbia, and I’ve had mediations
involving civil rights charges of employment discrimination particularly.
I had some early representations of counties that wanted to bail out of
coverage of the Voting Rights Act of 1965. I recall representing the County of
Honolulu, Hawaii and El Paso County, Colorado. Each county was covered by
the statutory formula, and we made presentations to the Justice Department and
the U.S. District Court here establishing their right to be released from coverage.
My recollection is that we were successful in relieving Honolulu and El Paso of
the obligations to comply with the special requirements of the Voting Rights Act.
To secure release, the counties had to demonstrate the negative, that is, that they
had not engaged in any conduct violative of the protections against discrimination
in voting. Note that bailout has now become a major matter in light of the recent
Northwest Austin Municipal Utilities District No. 1 v. Holder [557 U.S. 193
(2009)] decision, which was a constitutional challenge to Section 5 of the Voting
Rights Act where the Supreme Court didn’t reach the constitutional issue but said
that the Act gave the Utility District a right to bail out if it could prove it met the
statutory requirements.
Mr. Schultz: This is Judge Tatel’s decision?
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Mr. Pollak: It’s Judge Tatel’s May 30, 2008 decision for the three-judge United States District
Court for the District of Columbia, 573 F. Supp.2d 221, which was reviewed by
the Supreme Court and decided in an opinion of Chief Justice Roberts.
Mr. Schultz: Let’s turn to antitrust. I gather one of the biggest matters you handled was the
Pinney Dock case, so why don’t you tell us how that came about and what it
involved.
Mr. Pollak: When I worked at Covington & Burling with Gerhard Gesell, I worked on several
antitrust cases. It was that antitrust background that led to my first retention by
the Trustees of the UMWA Health and Retirement Funds to represent the Funds
against charges by Webster Hospital that limitations on hospitals participating in
the health plan of the Trust were an antitrust boycott. So I’ve always considered
myself versed in antitrust law. In the later years of my practice, I had the Pinney
Dock case and two assignments from the United States District Court for the
District of Columbia in antitrust cases.
United States District Judge Harold Greene appointed me an amicus to
advise the Court in a case in about 1984. Laker Airlines had brought an antitrust
action in the United States courts against Pan American World Airways and other
airlines alleging antitrust violations. These were allegations respecting
international carriage and two British airlines went into the court in Britain and
sought a preliminary injunction against Laker proceeding against them in the
United States action. The British court issued the preliminary injunction against
the proceeding which was before Judge Harold Greene. Laker of course was
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precluded from presenting any matters to Judge Greene. Judge Greene wondered
how to proceed, whether he should honor the injunction of the British court,
whether his duties under the antitrust laws in the United States called for him to
go forward, and he appointed me an amicus to advise him on what to do. So
primarily my service to Judge Greene, as to which I was assisted at Shea &
Gardner by partners John Rich, Tim Shuba, and Frank Kramer, was to review
matters of comity, international law, and interrelationships between courts in
preliminary injunction issues. We issued a lengthy report to Judge Greene that
was published in the International Business and Trade Law Reporter in its
November 1985 issue, about 100 pages. Judge Greene had considered proceeding
contrary to the injunction. Our counsel was to await an imminent ruling of the
British courts, and in the end, the British courts took down the injunction and the
matter went away. That was a very interesting assignment, posing great issues
respecting the rule of law in relationships between courts of different nations. I
recall that we determined that we would not have relationships off the record with
Judge Greene, so that the parties to the litigation need not feel that matters that
came to our attention in receiving submissions from the parties on the issue
presented to us would then become influential on the Court which was ultimately
to deal with the merits of the matter. That I think worked out well. Upon getting
the assignment from the Court, before we knew anything about the facts of the
matter, my memory is that Judge Greene was very restive at being under a
preliminary injunction from a foreign court that precluded a party from presenting
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to him matters, facts, about carriers that were allegedly operating in violation of
the United States antitrust laws.
Mr. Schultz: Was this pro bono?
Mr. Pollak: No.
Mr. Schultz: How were you paid?
Mr. Pollak: In this International Business & Trade Reporter, we wrote a little introduction at
the invitation of the Reporter that talked about our report which they then
published in full. In that document, we reported that there was a great interest
that people had in whether we were paid. We spoke to that issue and I have to
look at the document which is in front of me. We said in this introduction,
“Although we had undertaken the assignment without any understanding
whatsoever about the availability of compensation, the law in the District of
Columbia was clear: ‘the traditional rule regarding compensation of an amicus
curiae is that ‘where the court appoints an amicus curiae who renders services
which prove beneficial to a solution of the questions presented, the court may
properly award compensation and direct it to be paid by the party responsible for
the situation that prompted the court to make the appointment,’” citing cases. So
we filed a petition for compensation from the parties. We didn’t specify what the
compensation should be. The matter was settled with the defendants that were
directly the beneficiaries of the British court’s injunction, British Airways and
British Caledonian, Lufthansa and Swiss Air. So we were paid something.
Now if you want, I can speak about the Pinney Dock case.
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Mr. Schultz: Before you do, tell me about Harold Greene.
Mr. Pollak: Harold Greene had been the Chief of the Appellate Section, called the Appeals
and Research Section, of the Civil Rights Division. I was not in the division at
the time of the drafting of the Civil Rights Act of 1964 or the initial drafting of
the Voting Rights Act of 1965, but I have been greatly concerned with those
statutes and had a role in the ultimate drafting of the Mansfield-Dirksen
Compromise, which became the Voting Rights Act. My firm understanding is
that those bills were in the major part drafted in the Civil Rights Division and that
Harold Greene was the major drafter.
I joined the Division in March of 1965 and Harold was at that time the
head of the Appeals and Research Section. He was soon to be named by
President Johnson to the then-local trial court called the Court of General
Sessions. I came to know him well while he remained in the division where I
began serving as First Assistant to the Assistant Attorney General and then
became close to him in his service as Chief Judge of the Court of General
Sessions, and after 1972, Chief Judge of the Superior Court of the District of
Columbia. Particularly, I related to him when I served President Johnson as his
Advisor for National Capital Affairs. Also, I had at least one case in front of him
for the UMWA Health & Retirement Funds when he was a federal District Court
judge. I considered him both a professional and a close personal friend, along
with his wife Evelyn. Recently, as President of the Historical Society, I facilitated
for the family the gift of Judge Greene’s papers to the Library of Congress.
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Judge Greene loved being a judge. My recollections about him are most fully set
out in time present because I spoke at the time his portrait was hung at the Court.
I will attach my remarks.
Mr. Schultz: Yes, that would be a good idea.
Mr. Pollak: I may have spoken on another occasion about him. In a short capsule, he loved
being a judge, he loved the law. He suffered fools not well. He was constantly
challenged by, and wanted to be constantly challenged by, the cases presented to
him. He was very effective in acting as a trial judge and was a good
administrator. He had always a twinkle in his eyes and liked to see the humorous
side of life. He was very enjoyable to be with.
Mr. Schultz: When you say he liked the humorous side of life, do you have examples?
Mr. Pollak: He had a strong ego but would make self-deprecating humorous remarks about
himself, noting his own personal foibles. Whenever I would call him “Judge,” he
would always call me “General,” as in Assistant Attorney General. He called for
all the formalities in his courtroom, but otherwise, on a personal basis, he wasn’t
at all stuffy. The best story I think is in one of these remarks that I made about
him: When he had just gone on the bench of the Court of General Sessions, I
went to lunch with him and he told me that he had a run-of-the-mine
landlord/tenant case that had come to him, and he said that he thought there were
fundamental issues presented by the claim of the landlord to evict the tenants,
where the tenant was presenting defenses or seeking to present defenses about the
compliance of the landlord with the Housing Code. Judge Greene said that he
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was going to treat these issues fully and seek to address the legal issues in a full
manner, and he published then, I believe, a 22-page opinion, Edwards v. Habib.
The decision was reviewed by the D.C. Circuit. See 366 F.2d 628 (1965).
Mr. Schultz: It’s a huge case.
Mr. Pollak: It has rocketed down all the years. And that was in his first year on the bench. If
a matter was on his docket, he was going to get to the heart of it.
Mr. Schultz: He didn’t take anything for granted?
Mr. Pollak: No.
Mr. Schultz: That’s amazing. Okay, so let’s talk about the Pinney Dock case. How did that
come about?
Mr. Pollak: Pinney Dock was a dock company on what’s called the Lower Lake Erie. It
received iron ore vessels that brought iron ore pellets from the upper
Lake Superior iron ore mines down to the Lake Erie docks for offloading and
movement by rail cars to the steel mills in the Pittsburgh area. The railroads and
the dock companies were related because the dock companies had ore to ship and
had to pay the rates the railroads charged. The railroads were regulated and
enjoyed exceptions from the antitrust laws for rates for cartage of the ore that
were reviewed by the supervising ICC authority. Pinney Dock alleged – as did
the steel companies as well –that the railroads had colluded in violation of the
antitrust laws in setting the rates for movement of ore, and the railroads defended
on the ground that their behavior was fully authorized by the exemptions that
were part of the rate-making structure. John Doar, my colleague in the Civil
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Rights Division, was retained by CSX, one of the major carriers of the iron ore, to
defend it from complaints by dock companies and steel companies for treble
damages stemming from the alleged unlawful collusion among the ore-carrying
railroads over rates. He needed assistance, so he came to Shea & Gardner and
particularly to Dorothy Landsberg, who had been a colleague of his in the
Division who was a paralegal at the firm, and to me to join him and to bring the
resources of Shea & Gardner to the defense of CSX. All the ore-carrying
railroads were defendants in the case. It was a great big case, a gigantic case in
which there were many, many depositions. The cases were filed in the late 1970s.
In order to defend the charges, we had to go back and find facts running back into
the 1950s and pursue thousands of documents and talk to aging railroad
executives who had come up from being clerks on the railroads. We had to learn
all of the economics of movement of ore. CSX was headquartered in Cleveland.
The case was pending in the United States District Court in Cleveland, and we at
Shea & Gardner with Doar engaged in a long case preparation focused on
developing a defense. Bessemer & Lake Erie Railroad was a defendant,
represented by former Antitrust Division Section Chief Ken Anderson. Laurence
Shiekman from Philadelphia’s Pepper Hamilton firm represented another
defendant railroad. There were outstanding antitrust lawyers in the group. CSX
wanted John Doar to represent it in both the pending criminal and civil
proceedings. John said that it would be more than he could handle to do both so
Don Flexner of Crowell & Moring was retained to represent the company in the
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criminal case. Ultimately, with John in the lead, CSX made a favorable
settlement of Pinney Dock’s civil case. All the railroads but the Bessemer &
Lake Erie settled. Anderson went to trial, and the verdict was against the
Bessemer. The treble damage award was in nine figures.
Mr. Schultz: What was the argument. Given that these were regulated rates, that the
companies had somehow manipulated the rates?
Mr. Pollak: That the ambit of the protections flowing from rate regulation by the ICC was not
as broad as the discussions between the companies reflected.
Mr. Schultz: So there’s evidence of discussions?
Mr. Pollak: My recollection, and it has been a while, is that the railroad representatives had no
consciousness that they were doing anything wrong because they were operating
in a climate where they were regulated and their rates were regulated and they
thought nothing of discussing the rates. So there were limitations. The evidence
was presented challenging the rates because of the discussions. The claims
reflected a change in the understandings, a look at events of the 1950s through a
prism of the later 1970s.
Mr. Schultz: Right. So this was the Carter Justice Department throughout the criminal case?
Mr. Pollak: I think so. There are a large number of people at Shea & Gardner who worked on
the case, it was so big. In the appellate proceedings, our team was led by
Dick Conway who was an outstanding appellate lawyer here at Shea & Gardner.
There were large multi-law firm efforts to consolidate the briefings. Ultimately
certiorari was sought in the Supreme Court. I don’t think the Supreme Court
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reviewed the appellate decision that limited the protections of the railroads and
brought about the settlements.
Mr. Schultz: Tell me about John Doar.
Mr. Pollak: John was a great leader of the Civil Rights Division. I’ve spoken about him
earlier in this oral history and do not want to repeat myself. Here is one thing I
may not have said, because it may not have taken place. John had the highest
confidence of the courts before whom he appeared, particularly United States
District Judge Frank M. Johnson, Jr. of the Middle District of Alabama and the
outstanding appellate judges of the Fifth Circuit who issued courageously the civil
rights rulings of that era about voting and schools, Judges Brown, Wisdom, Rives,
and Tuttle particularly.
I’m active with the Civil Rights Division Association, an organization of
division alumni primarily of the 1960s and 1970s. We put on a symposium at the
FBI auditorium and brought Judge Wisdom up. Of course he reflected on the
cases brought by the Civil Rights Division in the 1960s. John was there, and
Judge Wisdom expressed his high regard for John Doar and for the role John
played.
Mr. Schultz: When he left the Justice Department, John went out on his own?
Mr. Pollak: John left the Department to become the President and Director of a project of
Robert Kennedy in the Bedford-Stuyvesant community in New York. He did that
for a while and if memory serves me, he was at one time for a period head of the
Public School Board in Manhattan. John was then retained by the House
– 248 –
Judiciary Committee majority as counsel responsible for the proceedings
respecting impeachment of President Nixon. He practiced with the Donovan
Leisure firm in large-case practice, antitrust practice. John’s integrity was
absolutely as high as anyone I ever practiced with. Subsequent to that time, the
Eleventh Circuit retained John to represent the full Court in reviewing allegations
of misconduct relating to Federal District Judge Alcee Hastings on the District
Court in Florida. John performed that responsibility in his usual outstanding
fashion. John continued practicing in his own firm which originally was known
as Doar, Dvorkin & Rieck. Mike Dvorkin had been a law clerk for Judge Gesell.
Mr. Schultz: Very interesting. Okay, so there were a number of interesting investigations.
Mr. Pollak: Right. Do you think we’ve done enough for one day?
Mr. Schultz: Okay. Why don’t we stop here.