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A federal appeals court on Wednesday threw out a class action seeking overtime pay for more than 9,000 government attorneys because the lawyers didn’t get the proper written approval before putting in extra hours. A three-judge panel of the U.S. Court of Appeals for the Federal Circuit was unanimous in its decision in John Doe v. United States, 03-5075. The ruling overturns U.S. Court of Federal Claims Judge Robert Hodges Jr. For now, Wednesday’s ruling kills the government lawyers’ claims. The largely anonymous class sought $500 million in overtime pay for work performed between 1992 and 1999, when Congress passed a law barring overtime pay. Robert Van Kirk of Washington, D.C.’s Williams & Connolly, an attorney for the plaintiffs, said he planned to seek the full court’s reconsideration. In a written statement, Van Kirk said the panel’s decision had overturned nearly 50 years of precedent in “concluding that the Department of Justice’s deliberate refusal to put its orders and approvals to work overtime in writing permitted the agency to escape any obligation to pay its attorneys for the work they performed.” The decision, written by Judge Timothy Dyk and joined by Judges Randall Rader and William Bryson, said the lower court should have granted the government’s summary judgment motion because the Federal Employees Pay Act requires written approval before working overtime. William Shockley, secretary of the National Association of Assistant U.S. Attorneys, was disappointed, but said the opinion had a silver lining. The appellate judges made a point to suggest the government take a look at its pay system. “Our predecessor court was legitimately concerned that at least in some instances � the government in effect was coercing uncompensated overtime. The government’s brief in this case candidly admits that DOJ attorneys were expected to work overtime without compensation,” Dyk wrote. “The problems that this case has exposed suggest that DOJ and other affected agencies might do well to re-examine the whole overtime question for employees � and seek a government-wide legislative solution.” The plaintiffs argued that the requirement to have overtime requests in writing was satisfied by memos and training guidelines from higher-ups and other paperwork. But the court didn’t buy it. “We have reviewed each of these documents, and none of them includes an express directive to work overtime, and none communicates the approval of overtime work by those officials authorized to order overtime,” according to the opinion. The suit was brought six years ago by government lawyers complaining about the long hours required to complete their assignments at the DOJ. Aside from the back pay, Shockley said the case raised important policy concerns. The DOJ has had trouble retaining experienced lawyers, who leave in droves for higher-paying private firms, and Shockley said NAAUSA members joined the case because they saw it as a way to even the playing field between the private and public sectors. A 22-year DOJ veteran who works in the San Francisco U.S. Attorney’s Office, Shockley said the long hours and small salaries — assistants make between $50,000 and $136,000 — make it difficult for the DOJ to compete with the private sector, which requires as many hours but pays much better. “It’s not a hiring crisis. We attract the best and the brightest. � And then they leave,” Shockley said. Now that the suit may be dead, Shockley sees more potential in changing assistants’ retirement package as a way to reduce the loss of experienced attorneys. Currently, attorneys get benefits equivalent to other federal civil service workers. That requires 30 years of service to get a comfortable pension, Shockley said. Some federal employees, though, have worked to get benefits similar to law enforcement officers, which can mean earlier retirement. Shockley thinks attorneys would be more willing to stick around if they saw that there was a bigger benefit available in a shorter period of time. Shockley said that in the five years before the end of fiscal year 2003, 1,299 Assistant U.S. Attorneys left federal service. Of those, only 102 retired. Most of the rest went into private practice. DOJ spokesman Charles Miller declined to discuss the case.

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