- The Washington Times - Monday, December 23, 2002

A federal judge has granted summary judgment in favor of a certified class of more than 9,000 Justice Department lawyers who claimed in a 1998 lawsuit they were unlawfully denied pay for millions of hours of overtime work performed on behalf of the government.
The recent ruling by Judge Robert H. Hodges Jr. of the U.S. Court of Federal Claims in Washington found that the highest officials at Justice knew that the department's lawyers were working overtime in order to perform their duties. Nevertheless, the officials informed the lawyers that they were expected to work the additional hours.
Judge Hodges also ruled that the "official policy at the Department of Justice has been to accept overtime work from its attorneys without paying for it," and that the department maintained a second set of employee time records that tracked lawyers' overtime hours, which were then used in performance evaluations and for awards and promotions.
The judge also said that the department "may not exempt themselves from the law by the simple expedient of issuing a policy stating that it will not pay overtime."
In his order, Judge Hodges said that the Justice Department should resolve the case by creating "a fund to compensate attorneys for lost premium pay, to be distributed according to a formula crafted by the class." The judge said he would hold a trial on damages for the class if the parties are unable to reach agreement on those damages.
The damages are expected to be substantial, said Robert A. Van Kirk, the lead attorney in the case. He and others have estimated that a settlement in the case could cost taxpayers more than $500 million.
Mr. Kirk, a lawyer at the D.C. firm of Williams & Connolly, said the judge's decision "vindicates the right of federal employees to overtime pay as federal law requires."
"We look forward to working with the Department of Justice to promptly establish a fund that fully compensates our clients for their overtime work," he said.
Daniel S. Jacobs, who was the initial plaintiff in the case, said he was "gratified" by the court's ruling and hoped that the case "can now be expeditiously resolved." The suit was initially filed in the U.S. Court of Federal Claims in November 1998 by 180 current or former Justice Department lawyers. The number of plaintiffs swelled when nearly 9,000 lawyers joined as part of an "opt-in" period approved in September 1999 by Judge Hodges.
The suit sought damages plus interest for current 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 accused 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.
"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."
The suit said the department, in refusing to pay its lawyers for overtime work, knowingly violated the 1945 Federal Employees Pay Act, which 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.
The suit 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 Justice Department had 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 attorneys 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 its lawyers for overtime was vulnerable to a court challenge. However, a statute of limitations allows the plaintiffs to seek compensation only since 1992.

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