Filed: Sep. 04, 2013
Latest Update: Feb. 12, 2020
Summary: 556 F.3d 1091, 1093 (10th Cir. To the extent this provision refers to a prohibition on the, initial appointment of CJA counsel in § 1983 proceedings, it simply reflects the, Congressional directive in § 3599(a) restricting CJA appointments to criminal and, post-conviction proceedings.
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 4, 2013
Elisabeth A. Shumaker
Clerk of Court
MICHAEL EDWARD HOOPER,
Plaintiff,
v. No. 13-6048
(D.C. No. 5:12-CV-00758-M)
JUSTIN JONES, Director DOC; (W.D. Okla.)
RANDALL WORKMAN, Warden;
DOES, Unknown Executioners,
Defendants,
and
JAMES ALEXANDER DRUMMOND,
Attorney-Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.
James Alexander Drummond, attorney for the now-deceased plaintiff Michael
Edward Hooper, appeals from a decision of the district court refusing to compensate
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously to grant appellant’s request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
him under the Criminal Justice Act (CJA), 18 U.S.C. § 3599, for work performed in
connection with an unsuccessful challenge to Hooper’s execution by lethal injection.
For the reasons explained below, we exercise jurisdiction under 28 U.S.C. § 1291,
and reverse.
I. PROCEDURAL BACKGROUND
Mr. Drummond was appointed under § 3599(a)(2) to represent Mr. Hooper in
habeas proceedings challenging his death sentence. That effort ultimately was
unsuccessful, see Hooper v. Workman, No. Civ-07-515-M, 2011 WL 1935815 (W.D.
Okla. May 20, 2011), cert. of appealability denied and appeal dismissed, 446
F. App’x 88 (10th Cir. 2011), cert. denied,
132 S. Ct. 2721 (2012), and Mr. Hooper
sought to challenge the method of execution by lethal injection.
The district court granted a supplemental litigation budget for this purpose in
connection with Mr. Drummond’s existing CJA appointment. After working for
some time on the matter under the auspices of his habeas appointment, Mr.
Drummond filed a separate action under 42 U.S.C. § 1983 seeking to enjoin use of
the contemplated lethal injection protocol—a course approved by the Supreme Court
in Hill v. McDonough, 547 U.S. 573, 579-83 (2006). Shortly thereafter, district court
personnel informed Mr. Drummond by phone that CJA compensation would not be
available for his work on the § 1983 action. At that point, given the pressure of time
and the seriousness of the case, he simply continued his efforts on Mr. Hooper’s
behalf notwithstanding that communication.
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With the scheduled execution date approaching, Mr. Drummond filed a motion
for a preliminary injunction to stay Mr. Hooper’s execution. The district court
denied the motion and an immediate appeal was taken. This court affirmed the denial
of the preliminary injunction and the Supreme Court refused further review. See
Hooper v. Jones, 491 F. App’x 928 (10th Cir.), cert. denied, 133 S. Ct. 89 (2012).
As Mr. Drummond now emphasizes, this court appointed and compensated him under
the CJA for his representation of Mr. Hooper in those appellate proceedings. On
August 14, 2012, Mr. Hooper was executed.
In the district court, Mr. Drummond was compensated for work done in
connection with his CJA appointment for the habeas proceedings—including his
preliminary work in anticipation of the lethal injection challenge—but not for any
time spent in the § 1983 action. He filed a motion for reconsideration of the matter,
which the district court denied solely on the ground that § 1983 actions are not within
the purview of the CJA.
II. APPELLATE JURISDICTION
This case requires us to resolve an issue of appellate jurisdiction that has split
the circuits that have addressed it---are there any circumstances (and, in particular,
those presented here) in which CJA counsel can appeal the denial of a compensation
request? Two lines of authority help illustrate the legal framework and why we think
the answer is yes. The first sets forth the general rule that a court’s ad hoc review
and approval, reduction, or denial of a CJA fee voucher is a mere “administrative
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act,” not a “judicial decision” appealable under § 1291. United States v. French,
556 F.3d 1091, 1093 (10th Cir. 2009) (joining six other circuits disclaiming appellate
jurisdiction when appeal merely challenges amount of CJA fee awarded); see also
Rojem v. Workman,
655 F.3d 1199, 1201-02 (10th Cir. 2011) (following French).1
The second line of authority is founded on Harbison v. Bell, 129 S. Ct. 1481,
1485 (2009). There, the Supreme Court held an order that “denies a motion to
enlarge the authority of appointed counsel (or that denies a motion for appointment
of counsel)” is “clearly an appealable order under 28 U.S.C. § 1291.” Obviously the
denial of a motion to enlarge the authority of appointed counsel can have direct
consequences with respect to the amount of CJA compensation, but that does not
render it non-appealable.
The procedural facts of this case share features of both lines of authority. As
in French, the district court merely reduced counsel’s request for compensation under
the CJA. On the other hand, the basis for the reduction was not an ad hoc
administrative judgment about the appropriate size of counsel’s fee but rather, as in
Harbison, a decision regarding the proper reach of appointed counsel’s authority
under the CJA statute.
Two circuits have expressly addressed similar determinations and come to
opposite conclusions. The Fifth Circuit has held that such a determination is the
1
The inapplicability of § 1291 is jurisdictionally dispositive, because the CJA
does not contain an independent grant of appellate jurisdiction.
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functional equivalent of an appointment or enlargement-of-appointment order and
hence an appealable decision. Clark v. Johnson, 278 F.3d 459, 460-61 (5th Cir.
2002); see also Kelly v. Quarterman, 296 F. App’x 381, 382 & n.2 (5th Cir. 2008).2
The Eleventh Circuit has held in a split opinion that such a determination is
materially indistinguishable from a run-of-the-mill fee reduction and hence a
non-appealable administrative act. Gary v. Warden,
686 F.3d 1261, 1269-71 & n.21
(11th Cir. 2012) , cert. denied,
133 S. Ct. 1734 (2013); cf.
id. at 1281-85 (Wilson, J.,
dissenting). We conclude that appellate review is available in these circumstances.3
The decision whether to compensate counsel here involves interpreting and
applying the provisions in § 3599 governing the authorized scope of a CJA
appointment—in this case whether it encompasses representation of a capital habeas
petitioner in related § 1983 proceedings challenging the execution of his death
sentence. The interpretation and application of statutory directives is the very
essence of district court decision-making routinely reviewable under § 1291; it is a
2
Clark was decided under 18 U.S.C. § 848(q), the predecessor to § 3599; noting
that the two versions contained essentially the same relevant language, Kelly applied
Clark’s jurisdictional holding to a case involving § 3559.
3
We note that our circuit exercised jurisdiction to review a CJA determination
of the sort involved here in Hain v. Mullin, 436 F.3d 1168 (10th Cir. 2006) (en banc)
(reviewing denial of CJA compensation on basis that representation in state clemency
proceeding fell outside scope of counsel’s statutory authorization). But because we
never mentioned, much less explained, the basis for our jurisdiction, Hain does not
qualify as precedent on the point, Palma-Salazar v. Davis,
677 F.3d 1031, 1036 (10th
Cir. 2012) (following United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 38
(1952)). It is nonetheless notable that our holding here does not conflict with the
actual practice of the en banc court in Hain.
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mistake to equate it with the ad hoc administrative act of signing off on the amount
requested in a particular CJA voucher. See Clark, 278 F.3d at 461 (holding that
“definitively determin[ing] whether [counsel’s] services are compensable under the
Act as a matter of law” “is qualitatively different from approving or disapproving the
amount of expenses reasonably and necessarily incurred by counsel” for authorized
representation); see also
Gary, 686 F.3d at 1284 (Wilson, J., dissenting) (“An order
administratively approving (or disapproving) of funds within the scope of an
attorney’s [authorized] representation is not remotely comparable to an order
conclusively determining whether certain proceedings fall within the representation
authorized by § 3599.”).
We see no meaningful distinction, for jurisdictional purposes, between the
question of whether counsel’s CJA appointment encompassed and hence permitted
compensation for the pursuit of a lethal injection challenge under § 1983, and the
controversy in Harbison as to whether counsel’s CJA appointment encompassed the
pursuit of relief in a state clemency proceeding. Accordingly, guided by Harbison,
we hold that we have jurisdiction over Mr. Drummond’s appeal.
III. SCOPE OF COUNSEL’S CJA APPOINTMENT
Turning to the merits, two subsections of § 3599 are critical to our analysis.
First, § 3599(a) specifies the proceedings in which a CJA appointment may initially
be made: “criminal action[s] in which a defendant is charged with a crime which
may be punishable by death,” § 3599(a)(1), and “post conviction proceeding[s] under
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[28 U.S.C. §] 2254 or 2255 . . . seeking to vacate or set aside a death sentence,”
§ 3599(a)(2). Second, § 3599(e) specifies the authorized scope of such appointments,
which reaches beyond the confines of the original proceeding to include “every
subsequent stage of available judicial proceedings, including . . . appeals,
applications for writ of certiorari to the Supreme Court of the United States, and all
available post-conviction process, together with applications for stay of execution
and other appropriate motions and procedures.” (Emphasis added).4
4
The full text of the pertinent CJA provisions reads as follows:
(a)(1) Notwithstanding any other provisions of law to the contrary, in
every criminal action in which a defendant is charged with a crime
which may be punishable by death, a defendant who is or becomes
financially unable to obtain adequate representation or investigative,
expert, or other reasonably necessary services at any time either--
(A) before judgment; or
(B) after the entry of a judgment imposing a sentence of death but
before the execution of that judgment;
shall be entitled to the appointment of one or more attorneys and the
furnishing of such other services in accordance with subsections (b)
through (f).
(2) In any post conviction proceeding under section 2254 or 2255 of
title 28, United States Code, seeking to vacate or set aside a death
sentence, any defendant who is or becomes financially unable to obtain
adequate representation or investigative, expert, or other reasonably
necessary services shall be entitled to the appointment of one or more
attorneys and the furnishing of such other services in accordance with
subsections (b) through (f).
...
(continued)
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The first condition is clearly satisfied here. Mr. Drummond was appointed in
connection with Mr. Hooper’s habeas proceeding (and compensated pursuant to that
appointment for his preliminary work on the lethal-injection challenge, until he
commenced the § 1983 action). The crux of the matter is whether the scope of that
appointment properly extended to the § 1983 action. On that point, we have found no
relevant circuit precedent. Of course, the panel that compensated Mr. Drummond
under the CJA for his work on Mr. Hooper’s lethal-injection appeal necessarily
concluded that such work fell within the scope of § 3599, but its brief unpublished
order does not explain the rationale for that conclusion and the decision itself is not
binding precedent, see 10th Cir. R. 32.1(A).
This lack of precedent does not leave us without guidance—we have the
language of the statute and that suffices, at least for the particular circumstances
presented here. As mentioned above, after considering the Supreme Court’s direction
in Hill regarding appropriate procedures for challenging the constitutionality of
(e) Unless replaced by similarly qualified counsel upon the attorney’s
own motion or upon motion of the defendant, each attorney so
appointed shall represent the defendant throughout every subsequent
stage of available judicial proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals, applications for writ of
certiorari to the Supreme Court of the United States, and all available
post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also
represent the defendant in such competency proceedings and
proceedings for executive or other clemency as may be available to
defendant.
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specific lethal-injection protocols, Mr. Drummond filed a § 1983 action seeking
injunctive relief to stay Mr. Hooper’s execution until a constitutionally permissible
protocol was provided.5 In short, he pursued an appropriate procedure seeking a
stay of execution—a course that tracks the specific language in § 3599(e) identifying
judicial proceedings to which a CJA appointment properly extends. Thus, without
embracing any broad principle as to the statutory authorization for counsel in § 1983
actions generally, we conclude that Mr. Drummond’s efforts on behalf of Mr. Hooper
in this particular § 1983 action properly fell within the scope of his existing
appointment. 6
The judgment of the district court is reversed and the matter is remanded with
directions to compensate Mr. Drummond for his work on behalf of Mr. Hooper in the
5
The complaint acknowledged the execution could go forward if either of two
proffered alternatives were used: a one-drug protocol consisting of a lethal dose of a
fast-acting barbiturate, or the existing three-drug protocol with a back-up dose of
barbiturate to ensure loss of consciousness before administration of drugs capable of
inducing pain. See Complaint in W.D. Okla. No. 5:12-cv-00758-M.
6
In support of its contrary view, the district court cited the Guide to Judiciary
Policy, which states in general terms that the CJA does not cover “[p]risoners
bringing civil rights actions under 42 U.S.C. § 1983.” Guide to Judiciary Policy,
Vol. 7, § 210.20.50(c). To the extent this provision refers to a prohibition on the
initial appointment of CJA counsel in § 1983 proceedings, it simply reflects the
Congressional directive in § 3599(a) restricting CJA appointments to criminal and
post-conviction proceedings. As explained above, that directive is satisfied. To the
extent the provision refers to a prohibition on the extension of a proper CJA
appointment to include representation in related § 1983 proceedings that fall within
the permissive scope of § 3599(e), the Congressional directive must control and it
authorizes the representation here.
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underlying § 1983 action. The specific amount of the CJA award is, of course, left to
the unreviewable discretion of the district court.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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