Pay

One group of Justice Department attorneys seeks pay parity with another

At the Justice Department, assistant U.S. attorneys and trial attorneys are both, well, lawyers that do litigation. But they work under different pay systems.

Tom Temin@tteminWFED

September 28, 2021 1:45 pm

8 min read

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At the Justice Department, assistant U.S. attorneys and trial attorneys are both, well, lawyers that do litigation. But they work under different pay systems. The assistant U.S. attorneys say that on the whole, everyone else earns more. And they’ve asked department’s management division to move them from administratively determined pay to the regular General Schedule — like the trial attorneys. Adam Hanna is an assistant U.S. attorney in the Southern District of Illinois, and co-chair of the compensation committee of the National Association of Assistant U.S. Attorneys. He talked about the pay issues on Federal Drive with Tom Temin.

Interview transcript:

Adam Hanna: So for many years, assistant U.S. attorneys have been compensated under the Administratively Determined pay system that’s established under 28 U.S.C. 548 instead of the General Schedule. The AD system has been formed as a broad based, performance based pay system. And the problem with that is that it has over the years resulted in the systematic under compensation of AUSAs compared to our colleagues in the litigating divisions in the department.

Tom Temin: And what do AUSAs exactly do that’s different from what the trial attorneys do? Just give us a sense of the job here.

Adam Hanna: So, AUSAs are situated throughout the country and work under the 93 U.S. attorneys that are appointed by the president of the United States. Many of the biggest criminal cases that you’ll see in the news today are being prosecuted by assistant U.S. attorneys. We go up against the best lawyers in the country on the private side and we’re often successful. AUSAs worked both as criminal prosecutors — prosecuting individuals for committing federal criminal offenses — and also as civil attorneys who defend the United States interests in district courts all across the country.

Tom Temin: And the trial attorneys, it sounds like they do the same thing.

Adam Hanna: The trial attorneys have, like we do, the authority and ability to appear in district court on behalf of the United States of America. However, the trial attorneys are mostly situated in the nation’s capital, and they traveled throughout the country to work on more specialized pieces of litigation. So for example, tax litigation, or civil rights litigation, or particularly unique and high exposure tort cases. So they are specialists in certain areas of the law. However, I think that what we do is very much the same. We hold trial attorneys in high esteem, we think they do a great job, and we’d like to be paid on the same system that they are.

Tom Temin: Now you have written to Lisa Monaco, she’s the deputy attorney general, I guess in charge of the management division. And what it seems to say is that there are a greater number of the trial attorneys at a higher scale on a percentage basis than there are of the AUSAs.

Adam Hanna: That’s right.

Tom Temin: So let’s talk about that. And my question then is for a given job and career experience, do you get the same pay or lower?

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Adam Hanna: So AUSAs receive lower pay for doing essentially the same type of work. And in a recent study I was also able, finally, to come up with a comparison that really shows how stark this disparity is. We were able to compare the salaries of AUSAs against the number of attorneys in litigating division — the trial attorneys — who were at or above the GS-15 rate. And we discovered that only 65% of AUSAs earn at or above the GS-15 rate. Whereas in the litigating division, that number is almost always 90% or higher. So for example, in the criminal division in Washington, 97% of attorneys are at or above the GS-15 level, whereas AUSAs, again, doing much the same work out in the districts across the country, only 65% of those attorneys are at or above that same level.

Tom Temin: But are you able to equalize that number or corrected it for length of service of the different people?

Adam Hanna: So we are able to make comparisons based on length of federal service. And even by that metric, it’s clear that AUSAs are underpaid by $20,000 to $40,000 a year at almost every level of experience.

Tom Temin: We’re speaking with Adam Hanna, he’s the assistant U.S. attorney for Illinois and the co-chair of the compensation committee of the National Association of Assistant U.S. Attorneys. And what was the response you’ve gotten so far from Ms. Monaco and generally from Justice?

Adam Hanna: So we met with the deputy attorney general and her staff on Aug. 16. It was a productive meeting. They were receptive to our point of view. And so we followed up with a letter that just went out on Sept. 13. To date we have not received a response. That’s not surprising because in part right now, the Justice Department is still transitioning to the Biden administration. There are virtually no U.S. attorneys appointed by the Biden administration in office right now. And so, much of the work of the Justice Department is still in transition. So I’m not surprised that we haven’t heard back.

Tom Temin: And because you are in a “national association of,” is that a bargaining unit that you use to bargain with the Justice Department over everything but pay since federal employees can’t bargain over pay?

Adam Hanna: We are not a bargaining unit. We’re a voluntary professional association of assistant U.S. attorneys. So, we are interested in criminal justice issues. We’re interested in federal employee issues. We are not a union.

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Tom Temin: Got it. But there is a compensation committee. So what do you look at, I guess this particular issue or anything else?

Adam Hanna: Yeah. So this has been our primary issue going back for decades, because the issue with AUSA pay is one that has endured through virtually every presidential administration in the last 20 years. So our compensation committee is composed of AUSAs from across the country who study this issue. We issue Freedom of Information Act requests to the department to obtain the data that we need to perform these analyses. And then we get engaged in advocacy, both at the department and on the Hill to try to remedy this issue once and for all and treat AUSAs equally to our colleagues elsewhere in the department.

Tom Temin: Sounds like though that they would need to have some appropriation relief in order to just raise salaries on maas. I mean, how do you envision this actually coming about to get that pay parity?

Adam Hanna: I think that’s right. I think there is a financial aspect to this. But I think that in the big picture of the federal government budget and the Justice Department budget, it is not a huge amount of money we’re talking about — there have been some estimates as low as $42 million to correct this disparity for AUSAs across the country. We would support the department putting this in their budget request to the Congress and hopefully getting an appropriation that allows the department to continue doing all the things that it’s doing now, but also to bring pay equity for AUSAs.

Tom Temin: And because you’re not a union, but rather a professional association of federal employees, you really can’t address Congress personally.

Adam Hanna: We, on a fairly regular basis, do appear in front of Congress and provide testimony and expert advice on justice related issues. So we’re actively engaged on the Hill. We have a legislative staff in Washington that reaches out to members of Congress on our behalf and we try to be a good resource. We’re not just up there with this ask, but we try to be a good resource on criminal justice issues, on civil justice issues in the country, and provide accurate and timely information to Congress. And this is one piece of advocacy that we’re involved in.

Tom Temin: And what kind of reception then have you had so far?

Adam Hanna: So I guess the issue may ultimately fall to an appropriations subcommittee somewhere, but we’re regularly in contact with staff on the judiciary committee about this issue and about others that affect AUSAs in the federal criminal justice system.

Tom Temin: And you mentioned there are of course 93 appointed U.S. attorneys. How many AUSAs are there?

Adam Hanna: Nationwide, there’s a little over 6,000 assistant U.S. attorneys and the ranks have grown in recent years. The department has added new AUSAs to meet particular needs and to focus on particular priorities. But as we’ve grown our ranks we still haven’t achieved pay parity for those folks who are coming on board as AUSAs.

Tom Temin: And fair to say the average workload per attorney is the same, or roughly the same for the AUSAs and the other trial attorneys?

Adam Hanna: It’s hard to say, I think the jobs are very different. I would submit that AUSAs are probably in front of federal district judges more often than the average trial attorney at the department. But those trial attorneys are often working on very thorny legal issues that involve nationwide matters. And so, the job is different in that I think there’s more in person litigation done by AUSAs, but our trial attorney colleagues are certainly working on difficult and important legal issues in litigation.

Jared Serbu: Adam Hanna is an assistant U.S. attorney in Illinois and co-chair of the compensation committee of the National Association of Assistant U.S. Attorneys.