Justice in Wonderland: Who's fighting whom in class action on DOJ overtime pay?Author(s): TERRY CARTERSource: ABA Journal, Vol. 85, No. 12 (DECEMBER 1999), pp. 24-25Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27841306 .

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W?^m NEWS

Justice in Wonderland

Who's fighting whom in class action on DOJ overtime pay?

CLASS ACTION LAWSUIT ON BEHALF OF

By visiting www.do]do^^

BY TERRY CARTER When the Department of Jus

tice finds itself in the kind of trou ble it usually visits upon others, the result can be like tumbling through Alice's looking glass.

How better to explain the bi zarre situation in which the DOJ Civil Division has put together a team of lawyers to defend against a lawsuit in which they also have a

waiver permitting them to join the other side as plaintiffs.

Down the Rabbit Hole But then, there are waivers ga

lore in the class action brought by the department's current and for

mer staff lawyers seeking years of overtime back pay. For example, the class is represented by the Wash ington pit bull firm Williams & Con nolly, which often finds itself going up against DOJ lawyers. Despite the firm being declared conflict-free, an outside lawyer was brought in to represent plaintiffs who might feel uncomfortable as clients of their frequent adversary.

The case gets curiouser and cu

riouser. No one is quite sure how, but from the get-go the plaintiffs had a slew of damning doj docu ments even before discovery began

some circulated at the highest lev els. And, although the staff lawyers

may be among the best and bright est, they claim they have been kept in the dark on personnel matters.

For years they accepted at face value their supervisors' assertions that they are professionals and thus not eligible for overtime pay a bald-faced lie, according to the suit. The issue has simmered below the surface at doj, with memos at the attorney general-deputy attor ney general level discussing ways to get around the fact that they should be paying $40 million to $50

million a year in overtime. They even discussed how to

slip in legislation that would ex

empt doj lawyers from eligibility for such pay. John Doe v. U.S., 98-896 C, U.S. Court of Federal Claims.

That awakened a slumbering giant. Within three weeks of class certification in August, more than 4,000 current and former doj law yers around the country opted in as

plaintiffs. More than 12,000 are

eligible anyone who worked after Nov. 25, 1992, six years before the suit was filed.

The issue for many is more than overtime pay. Doj attorneys have long complained that the pay gap between pri vate-firm lawyers and those

in the govern ment has grown ev

tion even has its ^^vbIw own Web site at \ M W

www.dojclass.com, jjLd which includes doc- /??m^m uments. Those who #^ ! ^' qualify can opt in ^^^BpPBBwE merely by clicking on the appropriate area and filling in pertinent information.

U.S. Claims Judge Robert Hodges made it an opt-in case, say ing he preferred that government lawyers affirmatively stick their necks out. He noted that govern ment lawyers routinely put people on the spot as witnesses and should be able to take the heat themselves.

Probably the biggest problem for Justice is that for years it has kept two sets of books. One is a

straightforward time sheet record ing eight-hour days and 40-hour

weeks, signed by each individual. The other is a more realistic

record of actual time worked de tailed to two decimal places usu

ally 50- to 60-hour weeks, for im pressing Congress at budget time, advancing careers, and calculating awards of attorney fees.

24 ABA JOURNAL / DECEMBER 1999 ILLUSTRATION BY JOHN SCHMELZER

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There's one curious rub the government might avoid in arguing its case: Human nature being what it is, surely some staff lawyers puffed up their overtime to please supervisors who wanted the num bers any way they could get them.

A DOJ spokeswoman declined to comment, cit ing pending litigation. That means she couldn't say whether the litigation team expects to work on the case strictly for eight hours a day, 40 hours a week.

Or will they work long hours keeping two sets of time sheets trying to shoot down a case that

might benefit them financially if they lose?

"I certainly don't know if they have [worked overtime]," says Rob ert Van Kirk, lead plaintiffs attor ney. "But I've been getting faxes on the case from DOJ at 8:30 p.m."

The plaintiffs say working ov ertime is a matter of policy. A DOJ manual says staff attorneys "should expect to work in excess of regular

hours." As employees, they are cov ered by the Federal Employee Pay Act of 1945, which means that they should get overtime pay.

The Justice Department says overtime was not ordered or ap

7fs professionalism with a one

way ratchet You can work as

many hours as you want, but not fewer than 40.

' Robert Van Kirk

proved. But the Claims Court has ruled that "ordered or approved" is tacit when the overtime work is done with the "full knowledge, en

couragement and inducement" of supervisors. And when there are two sets of records, the overtime is considered approved. Byrnes .

U.S., 163 Ct. Cl. 167 (1963). One document already filed

reveals that the 94 U.S. attorney offices are ranked according to ov ertime, prompting supervisors to encourage lawyers to work long

hours. The plaintiffs also complain that if they want to take an hour or so off occasionally, they have to fill out leave slips in 15-minute increments.

"It's professionalism with a one-way ratchet," says Van Kirk, himself a former lawyer in the Civil Divi sion. "You can work as

many hours as you want, but not fewer than 40."

One former high-level Justice lawyer, Fran M. Al legra, wrote last year in a DOJ memo: "I believe it is problematic (some might

use the term unconscionable) for the department to continue not to pay its attorneys overtime knowing full well that the overtime statute applies.

"[S]ooner or later, an intrepid attorney will develop a class action on this issue and major problems will result."

That was in Allegrai transi tion memo when he left DOJ to be come a judge on the very court where the case was filed. He is said to be opting in.

it \ '

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