- The Washington Times - Tuesday, February 22, 2000

Nearly 9,000 Justice Department lawyers have joined in a class-action lawsuit claiming that they were illegally denied overtime payments during the past eight years. The suit could cost taxpayers more than $500 million.

The suit, initially filed in the U.S. Court of Federal Claims in November 1998 by 180 present or former Justice Department lawyers, saw its plaintiff count increase significantly over the past five months when nearly 9,000 lawyers joined as part of an "opt-in" period approved in September 1999 by Judge Robert Hodges Jr.

The deadline to join the case was last week.

The suit seeks $500 million in damages plus interest for present or former Justice lawyers who worked for the department in Washington and in U.S. attorneys' offices across the country since November 1992.

Covering nearly 80 percent of the department's staff lawyers, it accuses the agency's top management of illegally refusing to make payments for overtime that was legally accrued.

The suit charged that the department made "a conscious decision" to ignore a federal law requiring the payment of overtime for employees who work more than 40 hours a week.

Washington lawyer Robert A. Van Kirk, who represents the lawyers, said about 50 top Justice Department officials have received notice that they will be deposed in the case, including Attorney General Janet Reno and Deputy Attorney General Eric H. Holder Jr.

Mr. Van Kirk, a lawyer at Williams & Connolly, said he hopes to question Miss Reno, Mr. Holder and the others this spring and is looking for a trial date in September.

"It is ironic that the very agency charged with enforcing this country's laws has made a deliberate policy decision in this case to ignore the law," Mr. Van Kirk said. "The purpose of this lawsuit is to ensure that the nation's chief law-enforcement agency abides by the law itself."

Justice Department spokesman Charles Miller declined to comment on the suit.

The department has argued in the past, however, that the payment of overtime to its lawyers could cost taxpayers $40 million a year.

It also has insisted that its legal staff is composed of "professionals" who knew that they often would be required to spend more than 40 hours a week on the job to complete their work.

The suit said the department, in refusing to pay its lawyers for overtime work, knowingly violated the 1945 Federal Employees Pay Act that requires overtime pay for all federal employees who work more than an eight-hour day or a 40-hour week. The law does not create an exception for lawyers.

It said records show Justice Department lawyers work much more than 40 hours a week and that "DOJ management expects that its attorneys will work overtime, has knowledge that its attorneys are working overtime, relies on the time records they submit, and approves of the hours expended."

"Indeed, the department has adopted a formal policy of refusing to pay overtime even while admitting that its attorneys must work overtime to perform their jobs competently," the suit said.

The suit also said the department maintained "two sets of hourly time records" one showing that its lawyers worked five eight-hour days a week and another recording actual time, which is often more than 40 hours a week.

It said the second set of books was used to justify higher budget requests sent to Congress and in setting awards for attorneys fees in litigation with private parties.

The Justice Department has argued that the hourly time records were used as a "management tool" to help supervisors allocate resources among its various divisions and the 94 U.S. attorneys offices around the country, which are ranked according to how much overtime their lawyers record.

Documents obtained by the plaintiffs in the case show that senior Justice Department officials recognized as early as 1980 that the decision not to pay lawyers for overtime was vulnerable to a court challenge. However, a statute of limitations allows the plaintiffs to seek compensation only since 1992.

The records show that in a memo dated 16 days before the suit was filed, Fran M. Allegra, then a deputy associate attorney general, said it was "problematic [some might use the term unconscionable] for the department to continue to not pay its attorneys overtime knowing full well that the overtime statute applies."

Mr. Van Kirk said his clients share a sense of disappointment that the department would be less than forthright in its obligations under the law with regard to overtime pay.

He said many expected that their employer, charged with the responsibility of enforcing the country's laws, would make every effort to obey them.

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