Justice Department Lawyers Lose Appeal on Overtime Pay

By Stephen Barr
Tuesday, September 12, 2006

There's no dispute that Justice Department lawyers worked overtime and on holidays, and there's evidence the lawyers were "expected and induced" to work extra hours. But that's not enough to win back pay, a federal court ruled yesterday.

Overtime hours must be "ordered or approved" in advance for pay purposes, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit said.

The ruling is the latest in a long-running class-action lawsuit involving more than 9,000 Justice Department lawyers, but it's not the end of the case.

The agency lawyers, represented by Williams & Connolly LLP, will appeal the decision to the Supreme Court, said Robert A. Van Kirk , a lawyer for the firm.

"The Federal Circuit's decision essentially guts the Federal Employees Pay Act and gives federal agencies the green light to disregard the mandatory overtime provisions of the law," Van Kirk said.

The Justice Department would not comment on the ruling. In the past, the department has said that its lawyers are professionals who accept that they will work more than 40 hours a week to carry out their responsibilities.

Yesterday's ruling was the second defeat for the Justice Department lawyers -- many are assistant U.S. attorneys -- at the circuit court. They had prevailed in a federal claims court only to see that decision reversed on an appeal by the department. The lawyers went back to the circuit court in hopes of readdressing certain issues in the case.

The agency lawyers are seeking compensation for overtime, holiday and "administratively uncontrollable overtime," a special pay category. The department has said the case covers the period between 1992 to 1999, but the lawyers think the case could extend to the present.

The back pay at stake is substantial -- a 2001 estimate suggested it could be as high as $500 million. That year, the department successfully lobbied for legislation that it thinks will prevent the use of appropriated funds to pay overtime to its lawyers. That tactic brought criticism from some House members, who said the department was not leading by example and should conduct itself beyond reproach.

Yesterday's ruling, issued by federal Circuit Court Judges Alvin A. Schall , Randall R. Rader and Sharon Prost , focused on precise language in the 1945 federal pay law and in federal regulations. At issue was the court's finding that overtime hours must be approved in advance in writing and that the lawyers were not on a list of Justice Department employees who qualify for uncontrollable overtime -- a pay differential that goes to criminal investigators and others who regularly work long and irregular hours because of their assignments. The court also said an earlier ruling against the lawyers was correct and precluded them from getting holiday pay.

Even though the Justice Department kept two sets of books on the lawyers -- one for pay purposes and one for determining actual hours worked -- the court rejected for a second time the lawyers' argument that the records represented the department's approval of the extra hours.

"These records merely showed that the agency had awareness that attorneys worked extra hours -- not that they had been authorized to receive overtime pay for working extra hours," the court said.

When lawyers asked about overtime, they were told they were not entitled. The department also told lawyers there was no system in place to request overtime, according to the plaintiffs.

Fellowship Program

The Commerce Department is accepting nominations for the 2007 Commerce Science and Technology Fellowship Program, known as ComSci, that runs from January through October. ComSci provides opportunities to study national and international policy and management issues related to science and technology.

Full-time career federal employees in a professional or management series at the General Schedule 13 level or above are eligible to apply. The deadline for nominations is Oct. 2. For details, call 202-482-6103 or send an e-mail to Cynthia.Lynn@technology.gov .

Steven L. Katz, an author and management consultant, will discuss "everything new government executives and managers need to know but are never told" at noon Wednesday on Federal Diary Live athttp://www.washingtonpost.com. My e-mail address isbarrs@washpost.com.

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