Dan Clancy, whom I respect, says that former DOJ lawyers ought not “defend” the Department of Justice’s failure to comply with applicable overtime laws for its attorneys (“DOJ’s Little Defense,”). I agree, and said so in my original op-ed (“Open Class”). The department should not ignore the law, and if it believes that there is ambiguity it should seek a declaratory judgment to that effect, not flout it.

Thus I support wholeheartedly an effort to make DOJ comply with the law. But joining a lawsuit to seek such prospective injunctive relief is far different from seeking money for work we willingly performed and knew we would not be paid for. Clancy acknowledges that all DOJ lawyers are told from the beginning, via the U.S. Attorney’s Manual, that they will be expected to work overtime hours for no additional compensation. Whether this was legal under applicable federal laws (which were, of course, open for examination by all talented DOJ lawyers at the time) does not at all change our expectations at the time.

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