Prosecutors sue Justice

Lawsuit: Federal agency is being sued by its own lawyers, who say they have been cheated of overtime pay.

April 07, 2000|By Michael James | Michael James,SUN STAFF

Federal prosecutors are usually pitted against murderers, drug dealers, and multimillion-dollar fraud artists. But in a nationwide lawsuit unfolding in Baltimore, they're pitted against their bosses at the U.S. Justice Department.

About 9,100 former and current government lawyers around the country are claiming that the Justice Department cheated them of more than $300 million in overtime pay, and the U.S. attorney's office in Baltimore is the focus site for the prosecutors' case.

The case has become heated, with Justice officials suggesting in legal documents that the lawyers are working overtime because they are taking excessive lunch hours and going to the gym on government time. Lawyers contend the Justice Department was juggling its books to hide the true number of hours the lawyers have worked.

"The Justice Department basically expects them to work overtime, but they won't pay for it," said Robert A. Van Kirk, a lawyer for the Washington law firm of Williams & Connolly who is representing the prosecutors and other government lawyers.

"But they keep track of the extra hours and use the information to bill private parties for attorney expenses incurred by the government."

The average salary for a federal prosecutor is about $70,000 a year. The lawyers suing in the case say that overtime could help close the pay gap between public and private attorneys, the latter of whom can fetch salaries of $125,000 and up.

For the next three weeks federal prosecutors here will be deposed about the hours they put in, their work lives, and what is expected of them by their supervisors -- information that will be used as a representational sampling for the nation's 93 other U.S. attorney's offices.

"These are people that feel it's extremely important that the Justice Department adhere to the law," said Van Kirk. "It's a sad time for many prosecutors, who have been misled by the very agency that hired them to enforce the law."

Justice Department officials claim in court filings that the lawyers ought to be able to do their assigned work in a standard eight-hour work day.

That's angered the lawyers even more, because they say they are dedicated to their jobs and have been routinely expected to work overtime on cases that can't possibly be completed in normal business hours.

Among those to be deposed in Baltimore include Maryland U.S. Attorney Lynne A. Battaglia and several of her most experienced prosecutors, who have taken the bold step of being named plaintiffs in a case where most have identified themselves as Jane or John Does.

The names are anonymous because many lawyers fear reprisals from the Justice Department if their names were known.

One of the named Baltimore assistant U.S. attorneys in the case, 20-year veteran Harvey E. Eisenberg said that he and his colleagues "are reluctant plaintiffs."

"It's a very distasteful situation," said Eisenberg, whose career as a prosecutor and litigator once saw him receive a top government attorney's award alongside then-prosecutor Louis Freeh, now head of the FBI.

"When you start out, the Justice Department tells you to raise your right hand and swear to uphold the law. Yet, all these years we've been deceived. It boggles the mind."

The lawsuit was filed in November 1998 in the U.S. Court of Federal Claims, which hears cases against the government. Baltimore was selected as the focus site partly because of the high number of named attorneys -- 11 -- that came forward to be plaintiffs here. A judge in Washington wanted a focus site so that the very large case could be managed more easily by examining a specific site.

Justice officials refused to comment on the case.

But in court filings, they maintain that the overtime couldn't be paid since it wasn't authorized in advance.

The Justice Department acknowledged in court documents that it was aware lawyers were working more than 40-hour weeks. Justice officials also acknowledged that a 1945 law called the Federal Employees Pay Act required them to pay lawyers overtime or give them time off.

Prosecutors in Baltimore are saying that they don't get any extra money or days off. Jamie M. Bennett, one of Maryland's toughest federal prosecutors who has sent dozens of the state's most violent criminals to prison, says in court documents that she doesn't -- and can't -- take time off because of extra hours worked.

She recounted in court documents how she once wrote a closing argument for a criminal trial while sitting next to her father during the last hours before he died.

"It's not like I can say, `I've worked extra hours, have somebody else take over my cases for me,'" Bennett said in an interview.

"Almost everybody in this office has a similar story that shows how committed they are to this job."

Bennett found out two weeks ago that a defendant in a major drug indictment she brought had tried to hire a hit man to kill her and the presiding judge, prompting her to work long hours at home on the ensuing investigation.

Such examples are what Van Kirk and the plaintiffs' lawyers will be using to buttress their case that prosecutors should be entitled to overtime pay.

Bennett said for her, it's a matter of principle.

"This isn't about the money," Bennett said. "Myself and many other of the plaintiffs joined out of a feeling that the Justice Department hasn't been completely forthcoming in the implementation of the law."

Assistant U.S. Attorney Andrew C. White, a named plaintiff in Baltimore who has done some of the office's biggest fraud and cyber-crime cases, said he thinks the Justice Department is sending the wrong message.

"We're the people on the front lines of fighting crime for the Justice Department," White said. "They should be thanking us, not fighting us."

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