Irwin Goldbloom Interview 3

s Good morning Mr. Goldbloom. It is October 31 as you
have noted, Halloween, and we are here to continue
the oral history t,hat you have graciously agreed to
provide to the project. sponsored by the District of
Columbia Federal Court OraI History Project. Good
morning.
Good morning. Good to be here again.
Glad Lo have you here. This morning we are going to
begin d new phase in your 1ife. We are going to
talk about, your final days at the Department of
,Justice and your transition Lo privat.e practice. We
al-so plan to discuss the argumenLs and appearances
that you have had before the United States District
Court for the Dist,rict of Columbia and the United
States Court, of Appeal-s during that time. Having
said that, why don’t we begin with the Freedom of
Information Act case that you were just telling me
about before we started.
A11 right. I t.hink this is a good case to put a
point. on the way the Court of Appeals administered
the Freedom of Informat.ion Act during the 1960s and
l-970s. It is sort of interesting because Lhis one
particular case which I worked on over a number of
years had several phases to it and the final outcome
was sort of unusua]. This involves the case of
Grumman v. The Renegotiation Board which f handled
first. I think starting as a staff attorney and,
probably by the time the case was finally argued I
was Special Litigation Counsel or perhaps even a
Deputy Assistant Attorney General. The case l-asted for a number of years.
It, was a relatively simple case involving internal
documents of t,he Renegotiation Board, an agency that
monitored the profits of government contractors,
defense contractors/ and was a holdover from World
War II and t,he Korean War designed to recover
excessive profits that these contractors realized. This agency was a very Ione1y little agency in
Washingt.on. Lonely, because most of the other
agencies of the government, the Pentagon partj-cu1arIy, felt that this agency was looking over their shoulders and by taking excessive profits from
t.hese government contractors, in a sense were criticizing the work of t.he milit.ary depart.ments and the Defense Department.
I
S
I
-69-
In any event, thi-s was a case to get at int.ernal
documents of the Renegotiation Board. I forget
exactly when the case initially arose, but it was
more or less routinel-y litigated before the District.
Court., Judge Corcoran handled the case in t’he
initial phise and sustained t,he government’s defense
that exemption 5 precluded the production of the
particular internal documents that were involvedffrat subsequent.ly was appealed by Grumman to the
Court of Appeals and in an opinion by Chief Judge
Bazelon, then Chief ‘Judge Bazelon, the decision of
the Dist.rict Court was reversed and the case
remanded for further proceedings on the ground that
Lhe government had to be held to a rather heavy
burden in demonstrating that internal documents were
indeed privileged from disclosure. It was one of
the earIy, very l-iberal decisions rendered by the
Court of Appeals for the District of Columbia
Circuit on Lhe Freedom of Information Act.
It was interesLing to me because a lot of my work
involved both the Freedom of Informat.ion Act
separately and the RenegotiaLion Board. So this was
sort of an intersecting of two clients or two tlpes
of cases that I worked on.
In any evenL, we wenL back, conducted a number of
proceedings before the District Court, some of which
were discovery of Renegotiat.j-on Board materials,
depositions. I know there was at. least one and
perhaps more depositions of Renegotiation Board
officials. f know for example the Chairman of. the
Board was deposed by Grumman’s attorneys and f
defended him. After the discovery had taken place
the case went back t.o the District Court. .Tudge
Corcoran ruled against the government on t.he grounds
that it had not sustained its burden to prevent the
disclosure of these documents.
At that point the government appealed to the Court
of Appeals. For reasons t.hat I cannot quite recaL1
there were rather substantial delays here both by
Grumman and the government. Delays in the sense
that. t.here were several extensions of time in the
filing of briefs and t,hen once the brj-efs were filed
and pending before the Court of Appeals there was a
substantial time lag before the case was set for
argumenL. It coul-d have been almost, a year af ter
the briefs had been fiIed.
-70-
S:
By t.he time the case was set for argument the second
time in the Court of Appeals, however, a number of
things had occurred at t.he Renegot,iation Board.
There had been a number of personnel changes on t.he
Board. Their position on various documents t.hat
were at issue had changed and, while they had been
resisting their production in the past, they were
now making them available to government contracLors
in proceedings before the Board and hence would be
availaQle under the Freedom of Information Act.
So it was fair t.o say that a month before the
argument when the case was calendared and I met with
the client and discussed the case with them, it
appeared that perhaps something like 75 percent of
the case was moot and the remaining 25 percent, and
by that I mean the documents that were at stake, Lhe
Board certainly wanted to vigorously oppose their production. But, I had to advise them that there
was faint chance that they would win the case
because of the prevailing mood in the Court of
Appeals ‘on Freedom of Information cases generally.
The government. had been losing them with some
regularity.
Nevertheless, they wanted the case argued and pursued. My missj-on durlng the course of the
argument as I had discussed t.his with the client was
to present, the facts concerning the change in position on the documents that were now being,made available and Lo urge that they should sustain the
remainder of the case in terms of overturning the District Court and allow the Board to maintain the privileged nature of these documents. Another way of looking at. it. was t,hat if the case was going to
be 1ost., it would be lost gracefully.
When the argument took pIace, .Tudge Ske11y Wright
was the presiding judge on the panel a-nd I forget
who else was there. The argument went very well as f recalI. The court listened to all of the details
about the change in position and was very interested in the regulations that had been issued, identifying the shifting of posi-tions on availability of these
documents during- the proceedings
Did ,Judge Wright actually ask you questi-ons during the argument? Was he an active participant?
He was, ds I recalI, a very active participant. in the argument. I felt that the position that I was
I:
-7L-
presenti-ng about the current status of this Freedom
of Information Act problem was very well understood
by the court based upon the colloquy during the oral
argument.
In fact, when I left the argument I was quite
pleased with myself that I had been able to get
through to the panel on the case and that I felt
they had this case well in hand. I must say that
after 4 day or Lwo on reflection f decided
that my sense of euphoria about t.he argument really
was not merited. I had this foreboding feeling t.hat
something terrible was going to befa1l us. This was
because I knew that the Court of Appeals was hostile
toward the government’s position generally in the
Freedom of fnformation Act area.
In any event, a few months 1ater, and I cannot
remember the precise time 1rg, the Court of Appeals
came out with an opinion written by .fudge Wright.
In this opinion, which was very lengthy and complex,
,Judge Wright used this case as a vehicle to render a
broad ruling on pre-decisional documents versus
decisional documents versus a whole host of
consi-deraLions concerning the administrative
process. I must say that very little about, the
courLrs opinion resembled either the case that f
argued or the case that I understood to be presented
by the record.
But the decisj-on was very, very antagonistic t,o the
governmentrs interests generally. It had far-reaching and broad implicatj-ons for t.he
government in the Freedom of fnformation Act area.
It so happened at or about the same time that another decision had emanated from a court of
appeals and I do not remember whether it was the
D. C. Circuit or some other circuit involvj-ng the
Nat.ionaL Labor Relations Board and I believe Sears
Roebuck & Co. That was a similar Freedom of fnformat,ion Act case about. decisional- t14>e documents. In any event the Solicitor General saw fit t.o take bot.h t.he cases to the Supreme Court and
Grumman was reversed by the Supreme Court. I forget the vote. It was either 7 t.o 1 or 8 to 1 somet.hing Iike that. Anyway, it was an overwhelming reversal of the Court of Appeals decision. Of course I
always look back on that as being an int.eresting
phenomenon for a case which I fu11y expected would
-72-
S
be gracefully lost in the Court of Appeals with a
non-meaningful decision and buried for a1l time.
Barely a ripple on the 1ega1 horizon.
Exactly. Instead, it now stands as a Supreme Court
principle.
Another case that I think is worthwhile describing
that I handled in the Court of Appeals was a rather
sharp ionstitutional confrontation that took place
in the mid-’70s. An j-nteresLing aspect of it was
the fact that it spanned two Administrations. I
think the description of how it. was handled and the
way it was treated by the court is an interestj-ng
refl-ection of t.he way the court dealt with issues in
that time frame.
As an ouLgrowth of the Watergate and post.-Watergate
investigations, various congressional committees
were regularly concerned about conduct by the
Executive Branch in t.he post-Watergate era
concerning whether the rights of citizens on an
individual basis were being impinged upon by
government agencies or government act.ions.
Certainly the investigations thal were conducted by
t.he Church Commi-t,tee and the Pike Commit.tee and t,he
Rockefeller Commission in Lhe post-Watergate era
were reflective of that.. More or less as a
simultaneous effort there was an investigation that
was being conducted by a House commit.tee and I
cannot remember which particular committee but I
know that. either the committee or the subcommittee
was chaired by Congressman ,John Moss from
California. It may have been the House Commerce
Commj-Etee. It may have been another committee but
Irm not certain
In any event, that committee was concerned that, the
FBI was conducting electronj-c surveillances
regarding U.S. cj-tj-zens concerning their telephone
conversations and other forms of communi-cation. rn
an effort to conduct this investigation the Moss
Committee hit upon a way of gaining’ access to information which might Iead, as far as they were
concerned, to discovery of abuses by government
investigative and intelligence agencies. They
issued a subpoena directed to American Telephone &
Telegraph to get fact.s and information concernj-ng
wiretaps that the FBI had requested AT&T to impose
on certai-n communications activities whether or not
T.
-73-
S
they were foreign. This was well known to the
Executive Branch because there had been some
discussions with the Executive Branch and the
Attorney General’s office.
In any event, the Attorney General and t.he President
fel-t very strongly that this was an interference
with foreign intelligence activities being conducted
by the United States and that despit.e all the
assurances by the Executive Branch to Congressman
Moss t.Iiat there were no domestic surveillances
involved in these part.icular wire taps, the
Committee went forward and subpoenaed AT&T. AT&T of
course was simply a stakeholder in this controversy
since from their point of view t,hey were carrying
out activities at the behest of the FBf and the
Attorney General doing what they considered to be
their proper corporate citizen’s responsibilities.
Simply being faced with a Congressional subpoena
they saw no recourse but to comply.
During this time period would the Bureau have been
required to get search warrants or any kind of
authorizatj-on for putting these wiretaps on?
This was before the days of the special court.
The FISA?
Yes this is before those days. These wiretaps were
authorized I believe by an internal system within
the Department of Justice in which they just did not
do it on t,heir own. It, was not soIe1y an FBI
operation. It was an operation which was aut.horized by the Attorney General- and I believe the Att,orney
General or his direct designate had a role in
approving every specifi-c one of these wiretaps.
The government’s positi-on, of course,- in this particular controversy was that every one of these wiretaps, and there was no quesLion that there were wiretaps, had to do wit,h foreign intelligence activitles and that there were no domestic spying or surveillance or things of that, sort.. That it was strictly foreigners and for whatever purposes they
were legit.imate areas of government concern and clearly authorized by prevailing 1aw.
You know those statements certainly did not satisfy
Congressman Moss who insisted upon seeing for himself and fel-t that the prerogatives of his
I
s
I
-74-
S
I
Commit,tee were such that he could get his subpoena
enforced. The Executive Branch seeing that it had
come to impasse Lhis was during the Ford
Administration had no choice but to take some
action and the action that it decided to take was to
file a lawsuit against AT&T. It sought an
injunct.ion Lo prohibit AT&T from complying with the
subpoena.
In connection with that the President of the United
Stat.es invoked executive privilege as the basis, the
foundation for this lawsuit. We sought, an
injunction against AT&T t.o prohibit their
compliance. Obviously, this was all done in the
open because the Committee immediately intervened in
the lawsuit and became the principal, Lhe real party
in interest and defended the case from the
perspective of the congressional interests.
The case came before District ,fudge Gasch. I believe he granted the injunction after hearing
argument’from Lhe parties. Then it was appealed by
the Committee to the Court of Appeals. At that point, Rex l-,ee was the Assistant Attorney General.
He and f had worked on the case fairly extensively. I was one of his deputies during that. time frame.
There were others in the Civil Division that worked
on the case but the two of us I think primarj-Iy had
handl-ed the case. It was handled at a f airly high level in t.he Attorney Generalrs Of f ice and the Whit.e
House was quite interested.
Who would have been the Attorney General?
Ed Levi was the Attorney General at the time. The
White House, ds I say, was quite j-nt,erested in the
case. We met regularly with the Counsel to the President, Mr. Buchen. The case came on for
argument in the Court of Appeals. I do not remember the panel but f do remember that ,fudge Leventhal was
on the panel at that time. Rex Lee argued Lhe case the first. time in the Court of Appeals. The Court quite properly recognizing that this was a major constitutional clash between two branches of the
government struggled to find a way not to have t.o decide it. They did so by determinj-ng that there
were many, many facts and circumsLances and issues that they needed to know more about. So without deciding the case, they remanded it for negotiat.ions and further development of t.he facts by the parties.
They did so with the admonition t.hat if the parties
-75-
coul-d not resolve it one way or another, that t,hey
would continue, they would hear the case again.
It was obvj-ous that the Court of Appeals hoped that
the case would go away by that kind of a resolution.
Nevertheless, the case went back to the District
Court and the parties then embarked upon a long
series of negot.iations. I think iL last.ed. about 5,
6 to 8 — maybe as long as 9 monLhs.
The reason the negotiat.j-ons t.ook so long was that it
occurred right around t.he time of the election in t76. With Carter winning the presidency while the
case had been on remand, all of the Republj-cans and
Ford Administ.ration left office . l, as the Deputy
in the Civil Division, was the reposit.ory of thg
case while j-t was on remand. In came the new people
from the Carter Administration to take over and,
indeed, to be responsible. One of the first persons
t.hat I reported to about this case was the new
Assistant Attorney General who was the head of the Office crf Legislative Affairs, Pat Wa1d, who came in
when the Carter Administration started in 177.
I explained the case to Pat Wa1d, who 1at,er became
the Chief Judge on the Court of Appeals. She well
understood the issues.
They were aired before the then Attorney General Griffin BeII. ft was discussed, f suspect al-so with people in the White House. It. was decided to carry
on the negotiations as they had before and
recollection of all those evenLs today remi
my
nds me
that I coul-d not perceive a whit of difference in the position being asserted by the Cart,er
Administration and the Ford Administration. The principles that were at stake from the Executj-ve
Branch’s point of view were readily adopt,ed by the Carter people. Mrs. WaId and I went up and met with
people on the Hill and negotiated just as we had
done with the Republicans.
The case eventually went back to the District Court. I must say that our efforts t.o negotiate this to a
satisfactory resolution short of litigation were unsuccessful. Every ef fort that t.he Executive
Branch made to find a middle ground was unsuccessful. This may be unfair t,o the Commj-ttee,
t.hey may have a different perspective of it, but our
view was that they adhered to a very rigid position
concerning the prerogatives of the Committee.
-76-
S
Indeed, I believe, if memory serves me, t.here was
even a meeting between the At.torney General and
Congressman Moss on this very issue in the Att.orney
General’s Office in which some of these principles
were aired. In any event, the case went back to the
Court of Appeals at. which point I argued the case
Rex Lee having gone and Pat Wald not wanting to
argue the case. It ended up that I argued it.. The interesting thing about. the argument was that t.he court was very much int,erested j-n all of the details of the hegotiat.ions that had taken place over the last several months.
Had the composition of the Court changed between Rex
Leers first argument and your second?
I do not recal1 precisely. I believe that at least I know that ,Judge Leventhal remaj-ned on the paneI. f am not certain f know ,Judge Robinson t
Spottswood Robinson, was on the original pane1. f
suspecL he was on the panel the second time around
and who the third judge was f cannot. recall but it is easily ascertainable.
In any event, the Court, of Appeals after the second
go around, recognizing that they had not been successful in burying the case by remanding it,
faced up to t.his constitutional crisis one more time
and decided it. probably should not be decided.
My recollection is t,hat t.hey essentially left the
case in status quo. They did not require AT&T to produce t.he documents but, they did not come down with a hard and definitive decision on it. My recollection is that I left the government some t,ime shortly thereafter and that nothing really of any
substance occurred after that. Basically the fire in the controversy seemed to go away and that was the end of it. But it was a fascinating foray with the Court of Appeals and how they dealt with what we all considered at the time to be a fairly substantial constitutional problem.
Mr. Goldbloom, we are now going to take a turn in
your professional life and talk about your decj-sion to leave the Department. of .Tust.ice and go into private practice. Would you be willing to share
your thoughts about t.hat move?
I
Tape 2
S:
-77 –
I Sure. I think on the last. tape I sort. of finished
up with a descript.ion of t.he AT&T case and that case
bridged the Ford and the Cart.er Administrations. As I moved into the Carter Administ.ration I got along fine with the new Assistant Attorney General. I
thought she was great Barbara Babcock t.ook over
from Rex Lee. f had all the same responsibility and
authority and prerogatives of a Deputy Assistant
Attorney Generaf that I had under the previous
Administration.
I had been in that. job for about 5 years. In the
very beginning days of l97B I was approached by
Carla Hi1ls for whom I had been a Deputy when she
was t.he Assistant Attorney General in either 1-974 or L975. She asked me whether I would consj-der joining
her i-n opening up a Washington office of a
California 1aw firm, with which she was then j-n the
process of negotiat.ing.
That proposal came to me out of the blue I had not sought it although I had known Carla fairly weII. I had been her Deputy and worked very closely with her when she was the Assistant Attorney General. f also had a number of cases that she drew to my attention when she became the Secretary of HUD after leaving the Department of ,fustice during the
Ford Administ.ration. I had worked on a few of those
cases which were controversial and not,orious and in
some respects poIit.icalIy inspired. I had known her both professionally and somewhat. socially as well
because she was that kind of a person. So when she
approached me this came as a rather j-nteresting and substantial proposi-tion that I had to consider. I
must say at that point I had put in something better than J-9 years in the Department and while I had originally considered going into the government for
a 2-year period
f remember that at the beginning of your interview.
It. seemed to stret.ch on for all t.hose years and the
reason t.hat it. did so was that f was blessed by having good assignmenLs, good work and a feeling of great satisfaction and gratification from t,he work I
did. By the time this proposal came to me my family had grown. I had five children at this point, ffiy o1dest daughter was J-n co11ege, but I had the prospect of four more children t,o go to coIlege, to have to pay for that. The economics of t.hat l-oomed
very heavily on my horizon. Whi1e I certainly did
s
I
-78-
not decide to leave the government and go int,o
privat.e practice for the benefits of more money
which was clearly the case, it was a major factor,
it would be untrue to say that it was not a major
factor. But it was not. the cont.rolling factor by
any means.
The opportunity to go into the private sector was
one that had come across my desk from time t.o time
over the years. I had been approached various times
and indeed I even made a few relatively few modest
forays int.o the area on my own to test the waters.
But t.hey had never been all that serious. While
some of the proposals made to me were seri-ous, looking at them and comparing t,hem with the work I
was doing and the opportunities that they presented
I always opted to stay.
But this time it was a Iit,tIe different. This was
the opening of a new office. Carla Hil1s was a
major person and st.iI1 is, of course. This was a
very good firm and I decided to give it a whirl, Lo
take a chance to go out. and interview with them and
T did.
I would say anot.her aspect of the reason for leaving
was that I enjoyed my work immensely. f was very gratj-fied by the opportunj-ties that were presented
to me. Yet there was always the notion sort of in the back of my head that there was another world out there that I really had not sampled.
There was another feast that I could at Ieast, partake of to see what the world was like from the private sector, to practice 1aw privately with private clients. This presented an opportunity and
a challenge.
As it turned out, it was even a greater challenge in
some respects than f thought it would ‘be. A11 of a
sudden, while f had been able to function as a
government litigator for a number of years, and I
thought quite successfully, the range of topics and issues and Iega1 problems that I was faced with sort of fe1l into certain set categories. It was not
very difficult to come up with answers because you kind of sense what the problem was almost when you
were presented wit.h it.
When I went into t.he private sector, f sort of looked for the challenge of new work, perhaps not knowing how well f would be challenged. I t.hink I
-79-
s
T.
-80-
survived that challenge successfully but. it turned
out to be a Iot more difficult. It was a more
daunting task over the long period of time to be
able to develop instincts and undersLandings of
various different areas of law where I had not
practiced before. While I am a litigator and while
my litigation skilIs serve me well in every sense of
the term, you are const.antly being faced with an
entirely new set of problems in differing areas that
you may never have been faced with before. That is
rea11y the notion I am t.rying to get across here.
In any evenL, I decided to leave . I j oined l-.,atham &
Watkins at the first. of March L978 much to the
chagrin and unhappiness of my colleagues who thought
I was going to stay forever at the Department of
,.Tustice. At the same time I am sure a 1ot of them
were happy that I was leaving, in one way or
another, happy for me.
I joined an office in which there were seven lawyers four partners and three associates. Of the four partners, three of them had included myself, Car1a Hil1s and Bill Ke11y who had been here in Washington
and worked with Carla Hi11s when she was at HUD. He
was a very young person at Steptoe & ‘-Tohnson when he
then moved over and joined L,atham & Watkins. One partner moved out from California who had been a
partner at, the law firm and three associates came from California. They were fourth or fift.h year
associates who had been with the firm. We opened an office on K Street which was a very temporary affair with just seven of us. Wit.hin the year we moved to
more permanent space at 1333 New Hampshire Avenue right near DuPont Circle where we stayed for about
seven or eight years. Now we are located on
Pennsylvania Avenue at l-001. I have seen our office
g’row in almost 15 years, iL will be 15 years in March, from seven to our population ih Washington is
around 7A-72 lawyers
That is guite a growt.h.
The law firm had one other office when I joined it. It was principally located in Los Angeles and had an offj-ce in Newport Beach which was an off*shoot of the Los Angeles Office. Everybody in that office had come from Los Angeles. There were 20 lawyers or
so in Newport Beach. The overall size of t.he 1aw firm when I joi-ned it was around 115, that, number sort of sticks in my head. Today the 1aw firm has
S
around 520 overall. Washington was the third
office. We now have seven offices in the United
States, dD office in London and there are Lwo
attorneys, we do not say we have an office, but
there are two attorneys who are working in Moscow
right now and one in Bulgaria. so it has grown over
t,he years and my experience and activities with .the
firm have grown and expanded during t.hat time frame.
Have you continued primarily to do litigation?
Yes. I have always done litigation and I have done
litigation in the 1aw firm. In the Washington
office I am the office chair of the Litigation
Department, which means my responsibilities have to
do with reporting to the national chair of the
Litigation Department which is located in Los
Angeles, coordinating litigation activities in the
firm having to do with assignments and things of
that sort. I t.hink it is fair to say that my work
as a litigator has not changed all that much over
the years. Representing private clients turns out
to be not a lot different from representing the
government cl-ienLs that I had in the Civil Division.
Perhaps t.he greatest opportunity that I had in the
Civil Division was that. the work there, dt least my
work, was to behave pretty much like private lawyers
behave generally. The cases t.hat I worked on we
had clients, the clients had positions or views or
prj-nciples that had t,o be pursued. The civil cases
were litigated pretty much as private parties
liLigat,e civil cases. One of the things that I have
had to tel1 people over the years when they have
heard that f was in government t,hey always think
of government lawyers as prosecutors. There is a
certain concept that i-f you are working for the
government you are prosecuting either a criminal
case or you are prosecuting some civi-I .program. My
work in the government was never never is too
strong rarely did I prosecut.e some offender. I
did not, do fraud work generally nor did I implement
any particular stat,utory program which had a mission
aspect to it. Rather it was client work. Agencies
or i-ndividuals who either needed t.o be defended or
to pursue claims on their behal-f . So that
experience f think has served me in the private
sector fairly well because the problems that. I face
for the clients that I represent now are not a l-ot
different. One of the things when I left the public
I:
-Bl–
secLor to go into private practice, one of the
surprises that I had in the privat.e sector that I
did not expect, was that I was fu11y familiar with
the bureaucracy that is associated with government.
I was able to deal with the bureaucracy, in fact I
think one of t.he reasons f was successful in the
government was that I managed t.o avoid becoming a
bureaucrat. and l-earned how to manipulate the
bureaucratic process. When r went into the private
secLor f sort of said to myself at the outset I am
puttingf all that behind me and surprise, surprise.
In the private sector the bureaucracies t.hat you
deal with as clients that I represent are not
they are very similar to the government
bureaucracies. They real1y are just the same.
Corporate clients or businessmen or business
ent.ities that I deal with have the same kind of
bureaucratlc tendencies. The people who work for
them, in-house lawyers or executj-ves act the same
way as people act in the government. f deal with it
and I t.trink f deal with it very well but it was a
surprise to me to find that it is as prevalent in
the private sector as it is in the government.
Perhaps the most fascinating aspect of the work in private practice has been the challenges that come
about from learning new areas of the 1aw. It is not
so much that you have to learn the areas as to get.
involved in substantive matters that you may not
have been exposed to before in an exLensive way.
The first thing shortly after joining the 1aw firm I
became part of the law firm’s trial team in a major anti-trust litigation. I was by no means in charge of this. others were already working on it. They
were working out of Los Angeles but. it was a very large case and they needed as many Ij-tigators as they could find. There were a number’of portions of the case that could be divided up and put j-nto
segmenLs. f took over one of the segmenls of the
case, being part of a very large trial- team. At one point. we hrad 20 lawyers working on this very large
case. It was the Uranium Cartel litigation that start.ed in the mid-’70s and went lnto t.he ’80s. It involved Westinghouse and Gulf and all the util-ities
on the East Coast, in Virginia and elsewhere. ft involved major foreign corporations. Eventually it
was all resolved and settled but there was fairly
ext,ensive litigation. A 1ot of work before it got
-82-
s
I
settled. It was a challenge and it was very
interesting. It was a very rewarding experience.
Since that time I have gotten involved in a number
of other areas. One of the areas that I work in
largely which is not new to me because I did have
exposure in the government, is government contracts lit.igation. f do a fair amount of governmenL
contracts work right. now. Perhaps one of the areas
somewhat new is the whj-te coIlar crime aspect that is assdciated with giovernment contracts litigation
where the government is dealing in the waste, fraud
and abuse sector. The government is pursuing
government contract,ors who are involved with the
issues like mischarging and misall-ocation of costs
and things of t.hat sort. Violations of the various federal crj-mina1 Iaw, mostly fraud. I have done a
fair amount of work in that area. But by and large I sti11 get the case that, comes along that is
standard and routine and is as familiar to me as
anything that I did when I was in the federal
government.
I can talk about two or three cases. Perhaps one is worth talking about more extensively than the others. I had a case where we represented Sears
Roebuck against. the United States. fL went to the
Court. of Appeals and we got a favorable decision
both out of the District Court and the Court of Appeals. This was a suit concerning cusLoms dut.ies that were owed as a reeult. of the television
importation issues. This arose out, of the r70s and the ’80s.
Who were the do you recall who t,he District CourL
,Judge was?
The Distrlct Court Judge in that case was ,Judge
Hogan I believe. We won the case in ‘the Court of
Appeals before a panel. The decision was written by
,Judge Ruth Ginsburg. I think j-t was a very favorable decision, our client was quite pleased with it.
More recently, in the last couple of years I worked
on a fascinating case which was directly associat.ed with all of the work that I did when I was in the government mainly admlnistrative Iaw.
We represented clj-ents that were involved in an
Endangered Species Act controversy. We brought an
-83-
action here in the District of Columbia and sought
injunctive relief which was denied. We then appealed
to the Court of Appeals and j-t was affirmed by the
Court of Appeals. So we lost both at the District
Court level and t.he Court of Appeals. But it was a
fascinating case in many respects. In fact I have
spoken on this at an ABA Litigation Section Seminar
Program last fa1l i-n Chicago. The case involved the
desert tortoise, which is a loveable little animal
that inhabits the Mojave Desert in California,
Nevada’and parts of Arizona. The tortoj-se was
declared to be an endangered species by Lhe fnterior
Department. in the fall, I guess it must have been
1989. Now, I may have my years wrong. ft was
declared to be an endangered species under the
emerg:ency provisions of the Endangered Species Act.
There were problems about a sickness that was
affecting and afflict.ing the tortoise in California.
Our cLients were homebuilders and developers of real
property in the Las Vegas Va11ey area. Las Vegas
Val1ey is and has been for a number of recenL years
the fastest growing city in the United States. More
people have been moving to the Las Vegas area
because of the climat.e and the economic conditions
there. The concern was that there were many real
estate developments housing projects, golf
courses, but mostly housing and business places that
were in t.he process of being developed.
f do not know whether you are familiar wit.h l-,as
Vegas but Las Vegas is right in the middle of the
desert and it is sort of an oasis but. it rea11y is
not it, is desert everylvhere. The desert. tortoise
is al1 over the area and once an animal or plant is
declared t.o be endangered under the Act, you can not
touch it,, you can not move it, you can not harass it. ft is a federal crime and you can be prosecuted
for violating the Act. There are criminal penalties
assocj-at.ed with doing anything to an endangered species. The impact of this declaration of t.he desert tortoise as an endangered species was such that it caused all development activj-ty in the Las
Vegas area to come to a screeching ha1t. There are
very large developers out t.here. Major real estate projects where roads were being built. Bulldozers
were grading and movj-ng dirt or sand about building
these projects. You could not touch them because the tortoise was everywhere.
The issue in the case had to do with the
t.he disease that had been afflicting the
fact that
tortoise
-84-
s
I
was locat.ed in California. The Mojave Desert
st.retches all the way from eastern California
t,hrough Nevada and into parts of Arizona. We
argued, and based on the facts that we were able to develop, this particular syndrome was actually an AIDS-like disease that was affecting these t.ortoises
and killing them. It. affected their immune system. It was prevalent in California, but it had not, been reported or there was no incidence of it in
Nevada.
To put a blanket determination covering this ent.ire
range of 45,000 square miles was arbitrary and
caprici-ous. We were noL attacking the designation of the animal-s as an endangered species or anything of that sort. We were quite interested in doing what we
coul-d to he1p. Nevert.heless, w€ thought that the
emergency listing,was arbitrary and that it should
have been confined to the geographical area where there were problems in Californj-a. They could have dealt with them there. In any event, we brought. an
actj-on here in the District of Columbia challenging the Secretaryrs determination and brought it on before the District Court. The District Court was quite sympathetic with our plight; neverthel-ess, he felt that the prevailing lega1 doctrines were such t.hat he had to go along and deny the preliminary injunction because he thought that t.he Endangered
Species Act was a very powerful instrument, a
powerful tool.
Who was the judge?
It was Judge Stanley Harris in the District Court.. The State of Nevada was a participant in this proceeding. They had joined as a party-plaintiff.
The various public interests groups such as the EDF (the Environmental Defense Fund) and other groups joined in as defendants on the side of. the government. So all of the interested parties were
i-nvo1ved.
ft came on for a hearing before the Court of Appeals
on our appeal from the denial of the preliminary injunction. The remarkable thing about this caie
was that. t.he parties, that is our clients, as well
as t.he state of Nevada, which was on our side, w€
were not totally antagonistic to the interest of the federal government t.o do something about the t.ortoise. Everyone recognized that there was a
serj-ous problem. No one was challenging the Act,
-85-
although t.here were some crazies out t.here if you
wilI, the off-road vehicle operaLors, the motorcycle
riders who wanted to claim that the Endangered
Species Act was unconstitutional, unfair and all the
resL of that. That. was not our position at all. We
were just simply saying that the emergency
provisions of the Act should not have been used to
impose a restriction in Nevada.
We met .early on this was before t.he case was
argued before the Court of Appeals. Early on we met
with the governmenL in an effort Lo see whether
there was an opportunity to work our way out of the
problem because here we were with many, many
developments that had come to a total screeching
ha1t. People were being thrown out of work, their
houses could not be buiIt, schools could not be
buiIt. There were a whole host of very serious problems. The government and we sat at the meetj-ngs
both at the Department of .Iustice and at the
Interior Department in an effort to see whether
there wds some basis, some basis on which we could
compromise and come up with something. The
government recognized the impact that their
determination was havj-ng on our cl-j-ents and I think
they were concerned that this could have farreaching implications for t.he administrat.ion of the
Act. But one of the principal problems that we
seemed to be facing was that here the tortoise was afflicted by t.his rather strange and new disease.
What the environmental- organizations were desperate
to do was to have somebody do some scientific
research on the nature of this disease and whaL was
causing it and figure out ways to treat it or to
deal with it. ot.herwise, this whole specJ-es could
be wiped out. As we talked t,his t.hing through – -a11 these informal discussions were going on whil-e this
case is pending while we were waiting to argue the case before the Court of Appeals.’ So the
antagonists were sitting around the table, but we
came up with some ideas. I cannot remember who came
up with them, I am certainly not going to take credj-t for them but. I participat.ed in discussions.
A11 of a sudden it seemed to be that one of the things that everyone thought would be a great idea
was if we could do some scienti-fic research.
The government had no money, no funds and no budget. to do t.he scientific research. There was no money to do this research on the disease of this species.
As we thought about and talked the t,hing through, it
-85-
came ouL Lhat there was possibly a way of working
our way out of t.his problem. What we were looking
for was a solution, long-term problems under the
Endangered Species Act require you to come up with a
habitat conservation pIan, which is a long-range
study of how to protect the habitat for an
endangered specj-es. You have to set aside land and
all kinds of t.hings that are desj-gned to insure t.he
preservation of t.he species. These are very
complicated, inLeresting and tj-me-consuming issues.
But here we were with real estate projects that were
stymied.
Our cl-ients were fairly well-to-do developers and
this was noL Lhere was somet.hing aL stake here.
We hit upon a not.j-on that the developers would fund
with their own money or subsidize the scientific
research. We brought in another public interest
organizaLion, the Nat.ure Conservancy, which is a
public interest organization Lhat goes out. and
acquires land for environmental j-nterests.
We had all- the parties together and we all sat
around at these meetings. ft turned out that
everyone was agreeable to a program of scientific
research which would take the tortoises you would
need a permit from the Interior Department. The
“taking” is a term of art under stat,ute. You would
use the tortoises as part of the scientific study t.o
determine the causes of this disease slmdrome.
To make a long story short, the Court of Appeals
then decided the case without knowing anyt.hing about
this it knew nothing about the negotiation.
The Court decided the case and I must say we lost it
and we lost it. bad1y. The Court of Appeals even
wenL beyond what we anything that had been said before ,Judge Silberman wrote the decision for the
Court. You would have thought, at that moment. that.
when the government, won t.he case they would have
said goodbye. fnstead, they kept sitting at. the
tab1e. The environmental organizati-ons were elated
that they won the case, but they kept sitting at the
table with us. Our clients ended up putting up
$2,’700,000 to subsidize scientific research on the desert tortoise –
Now it required, the whole plan invol-ved
universities, environmental organizations, the
government. They developed this very elaborate
-87 –
S
I
S
r
system for doing the scientific studies. They would
have t.o take some 800 odd tortoises to do t.he
studies. The quid pro quo was that we would put up
the money if they took the tortoises off our land.
Once the tortoises are cleared from our land, then
we can continue with the development. That is the
way it ended up. The tortoises were t.aken off our
land and t.he development continued and we were able
to finish the projects.
A11 of’this took place in the context of a court
case which was basically t.he vehicle for the
settlement. It was done in the context of a
settlement of a case in which the decision, of
course, was just totally favorable to the governmenL
and adverse to the plaintiffs that we represent.ed.
The result was totally favorable to our clients.
The money, I mean the money was a lot of money, but
for the purposes of being able to finish these
developments and was shared by there were a
number of parties involved it was a very, very
salutary effect.
What. a creative way to resolve the problem.
Well it was.
Do you know what ever happened with the study or is
it stilI ongoing?
We1l, the studies are stil1 ongoing and they are
part of the whole process ouL t.here. I wenL t.o at
least 10 meet.iDgs, large meetings with all the parti-es, all the interested parties on all sides of
the issues were present and we managed to negotiate
this resolution. If all you did was read the
decision of the Court of Appeals you would have no
idea how the case actually came out, but it is interesting that the case was resolved totally
litigation rather than separate from it. It was a
very useful result for all- part.ies.
For all parties that would suggest too bad
t.here is not a mechanism to advise the court by
t,he way you may be interested in how all of this
turned out.
s
We did not advise the Court of Appeals and I
they were ever officj-a11y notifj-ed of this.
t.o advise the District Court ultimately. We
doubt
We had
did
I:
-BB-
S
I:
because we presented an approval, a settlement
document to the Distrj-ct Court and it was signed off
by the District ‘Judge and the case was over. The
part.ies effectuated this you know outside the
courL system but under its umbrel-l-a, so to speak.
This is a good turningr point. I can perhaps move on
and give you some general reflectj-ons about the
Court of Appeals, or my practice before it.
Yes, I’t,hink that would be very he1pfu1.
Taking the long view over a course of many years,
the Court of Appeals for this Circuit has always
seemed to be much more activist I do not mean
that in a political sense but, activist in the
sense of the kinds of cases and the kinds of i-ssues
that seem to come before it. Because so many
government cases are in this Court. of Appeals sets
the work of this Court apart. from that of the other
Courts of Appeal. I have argued cases, in noL a1lof Lhem,’ but most of t,he Courts of appeal. I have
probably been in 9 of the 13 or L4. I have been in
the Federal Circuit here in Washington and I have
been in most of the other Circuits around the
country with t.he exception of a few.
This Court. of Appeals, and maybe it is just my
perspecLive from living in this area, the Court has
sometimes, during cert,ainly the r50s and ’70s, been
considered very liberal and very activist and very politically motivated. Politically with a sma1l
“p”, but nevertheless po1iticaI1y, they were a
player in the context of a 1ot of the issues that
were debated about government, about the
relationship betr^reen the Executive Branch and the
Congress, the relationship bet,ween the Executive
Branch and the public. A11 of the issues of the
Vietnam War and the turmoil of the ‘5Os .and ’70s
so to speak. There were a number of very liberal activist judges. f know, coming from the point of
view of the government, as a government attorney
during those years, f certainly felt t.he concern that t.he government generally expressed about it.. But I never fe1t. that there was anything particularly inappropriat.e about t,he way t,he CourL of Appeals behaved they were activists and f
expected that. Over the years I have seen judges
behave that way so there was nothing unusual about this Court of Appeals.
-89-
S
I
I must say in my experience and what I have seen
more recently of the Court of Appeals while there is
perhaps a littIe bit less of t,he emotionalism, as
Compared to the ’50s, present in what you see coming
out of the Court of Appeals recently. I think t.his
Court has always been populated by a group of
extremely abIe, bright. judges who take their wo::k
very seriously. They t.ake their role as judges very
seriously in fact sometimes too seriously. By
Lhat I _mean I have seen many, many opinions out of
this Court of Appeal-s where they seem to make an
extraordinary effort to cover every aspect of every
issue that could possibly be involved in some
complicated regulatory program.
There was a case a few years back where t.he CourL of
Appeals issued an opinion which had a Lable of
contenLs in it a several-page table of contents
for something like a 250-page decision. I know for
example that the Court of Appeals here has issued a
number of lengt.hy decisions only to find them
overturrled by the Supreme Court at some later date.
So that is a reflection of how seriously the judges
on this Court take their role in fashioning the jurisprudence that goes along with the kinds of
cases that they have. I am just not familiar with
some of Lhe newer judges on the Court of Appeals. I
know some of them, I know them by reputation, I know
who they are. f think lt is one of the best Courts
of.Appeal in the country now and I think it always
has been. It i-s always an exciting thing to appear
before them. You rarely feel that there is an indifference about them and about the cases that
they are handling. None of the judges has ever
l-ooked upon it as just simply a job but rather that
they are reaIly out there making 1aw or helping t.o
form a body of juri-sprudence. I think it is a great
Court. f find it., as I say, exciti-ng and gratifying
every time I appear before it or have anything to do
wirh ir.
I think, having listened to you, it is equally exciting that there are practitioners in Washington
who have had as many opportunities as you have to
appear before both the Court of Appeals and some of the excellenL District Court judges here.
ft has been a great and exciting practice that I
have had. I do not know how I have managed to do
it. Some of it ls not as exciting, sometimes it is
boring, but. I believe that you can take cases from
-90-
S
S:
I:
r
any sector of the practj-ce and find something about
them that is int.eresting or provocat,ive. There is
nothing du11 about the 1aw generally if you
understand the t.ensj-ons and the rub of most 1ega1
conLroversies. It. can come up any,vhere, any way. I
remember people when I was in the Department of
Justice, when I was a Deputy. New people would come
in and there was a question about where t.hey might
be assigned. At. one period there was an admiralt,y
section in the Civil Division and people said I do
not think I would want to work on admiralty cases.
I will never be an admiralty lawyer. But admiralty
law involved torts and contracts and disputes having
to do with ships and waves and harbors and things of
that sort. It was standard lega1 issues and you
could get as excited and as exciting work there as
you could anlmhere. You would probably get better
trial experience.
f remember that myself when I left ‘Justice to go Lhe
U.S. Attorney’s office in Cincinnati and everyone
said ,oh the cases will not be nearly as interesting
as what you have had at Justice in Washington. You
are going to go out to Cincinnati and you are going
to do some slip and faII at the post office and it
is not going to make the front page of the New York
Times and it is not going to be reported in the
Washington Post. I’ And, sure enough, I went out there and t.hat was the first case that I took to trial a woman who had slipped and fa1len at the
post office, but it was fascinating. It was my
case, I got to try it the way that I thought that it
should be tried and it was probably better trial
experience, as you sdy, than many of the other high profile cases.
And you were able to exercise and employ a1l- of your
1ega1 and tactical inst.incts and they work there just as well as they work in some casb that appears
on the front page of the New York Times.
The clienL-agency that was involved was just as
concerned about what was going to happen if this suj-t were lost as were any client.s in the more major policy-issue cases that. I had worked on.
Well you and I think the same way. Because one of the things that comes up in private practice and we
do not need to prolong this but we get in the big firm you get lots and lots of cases which I call I’bet the company’r cases. Young lawyers always f ee1
– 91,-
S
that “boy if f could only work on one of those rtbet
your company’r cases or a major antitrust lawsuit or
a major issue where millions or perhaps bil-Iions of
dollars are at sLake. ” That is fine, it is good to
be involved in those cases but those cases rarely
get litigated with the same kind of verve and
excitement that the “sIip and fa1l in the post
offi-cert cases do. You can never work on a case that
big without, having to consider every possible move
you are going to make 28 different ways and have
it run up several different. bureaucratic flagpoles.
By the time you end up executing the decision that
has been made you feel worn out just by the very
process.
We11, I think it probably speaks well for both of us
that we are this many years into it and stil1
enjoying the pract.ice of 1aw.
End of int.erview.
-92-