RILEY, Chief Judge.
Elizabeth Unger Carlyle, an attorney appointed under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, appeals from various orders of the district court
At all relevant times, Clay was an indigent inmate on Missouri's death row. A Missouri jury found Stacy Martindale hired Clay in 1994 to murder her husband, Randy Martindale. See generally, Clay v. Bowersox, 367 F.3d 993, 1006 (8th Cir. 2004) (reversing district court's grant of habeas relief); State v. Clay, 975 S.W.2d 121, 129 (Mo.1998) (affirming Clay's conviction and death sentence, as well as the denial of state post-conviction relief).
In January 1999, the district court appointed Carlyle and Jennifer Herndon, also an attorney (collectively, counsel), to prepare and present Clay's 28 U.S.C. § 2254 habeas corpus application. Although Clay's application was ultimately unsuccessful, counsel were paid under the CJA for their efforts on Clay's behalf.
In May 2005, counsel moved the district court ex parte under 18 U.S.C. §§ 3006A and 3559
Relying on 18 U.S.C. § 3599 and Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir.1993), the district court granted the ex parte motion in July 2005. The district court cautioned counsel that it was "not issuing a blank check" and qualified its order in four respects. The district court (1) set the rate of compensation at $125 per hour for each attorney; (2) capped counsel's combined fees at $3,500; (3) required prior approval for "investigative, expert, or other services"; and (4) ordered that, because the record in Clay's case was exhaustive and complete, "the Court will only reimburse counsel for their time and expenses... spent formulating arguments from the existing record."
Over five years later, in November 2010, counsel filed an ex parte motion to reconsider. Counsel argued (1) their hourly rates should be increased to $178 per hour; (2) they should be reimbursed for "clemency arguments outside the existing record"; and (3) the $3,500 cap was "highly restrictive" and should be lifted. Counsel provided the district court with a proposed budget, in which they sought $58,379 for client contact, investigative work, advocacy before the governor, community advocacy, and court advocacy.
In December 2010, the district court granted counsel's requests for an increase in their hourly rates and "for reimbursement to develop and formulate arguments outside the existing record." The district court granted in part and denied in part counsel's request to lift the $3,500 cap, increasing the total authorized expenditures to $7,000. The district court reasoned that, although § 3599 authorized reimbursing federally appointed counsel in state clemency proceedings, the district court retained the discretion to decide what amount of fees were reasonable.
The district court found counsel failed to justify their proposed $58,379 budget. The district court observed:
(citations, footnote and internal marks omitted).
Approximately a week later, counsel filed a second motion to reconsider. After endeavoring to "provide specific details as to the exact work [counsel] have done in the case, and work that will be `reasonably necessary,'" counsel asked the district court to lift its $7,000 cap and promise to fund their efforts at state clemency in full. In the alternative, counsel asked the district court for leave to withdraw their representation of Clay, on the ground that "[c]ounsel are simply unable to provide the diligent and competent representation to which Mr. Clay is entitled before the state executes him without adequate resources." Counsel opined,
The district court summarily denied counsel's second motion to reconsider, including the alternative motion to withdraw. Due to a technological error, counsel did not receive a copy of the district court's order in a timely manner.
On January 7, 2011, counsel moved the district court to stay Clay's execution "to secure proper funding to pursue clemency and related relief." Counsel indicated they had received "a generous donation of $10,000" but, "as [the district court] is well aware, the donation does not even come close to covering the budget required to mount an adequate clemency campaign for Mr. Clay." Counsel represented, "It is clear that the evidence is out there, yet most of it is beyond counsel's reach at this time" and "it is crucial that they be afforded this opportunity before the state kills an innocent man."
The district court promptly denied the motion to stay and provided counsel with a copy of its order denying counsel's second motion to reconsider. The district court ordered counsel to "continue to represent Petitioner to the best of their ability." The district court encouraged counsel to "record their time and expenses incurred" and "then submit their statement of fees and costs to the Court for review and approval."
Clay immediately appealed the denial of the motion to stay. On January 10, 2011, Clay also filed a largely redundant motion for stay of execution in the Eighth Circuit Court of Appeals pending "provision of adequate funding for his counsel to present clemency-related information to the Governor of Missouri." Missouri resisted Clay's request for a stay on the same date, even though it lacked access to counsel's proposed budget, which remained under ex parte seal. Missouri argued, inter alia, that counsel were derelict in waiting five years to file a motion to reconsider. The Eighth Circuit promptly denied the motion.
On January 11, 2011, the Governor of Missouri granted Clay clemency and commuted his death sentence to life in prison. The Eighth Circuit directed the parties to show cause why Clay's appeal should not be dismissed as moot. Neither party responded to the Eighth Circuit's show cause order, and the Eighth Circuit dismissed Clay's appeal. Carlyle later applied for and received CJA funds from the Eighth Circuit for her work on the appeal.
On January 20, 2011, Carlyle submitted a final CJA voucher to the district court seeking full reimbursement for "[t]he post-habeas phase of a capital case." Carlyle asked for $37,876.80, after deducting $12,096.40 in fees and expenses paid for by two donors.
On April 14, 2011, the district court adhered to its prior orders and declined to lift its $7,000 cap. Noting apparently no CJA funds had yet been disbursed, the
Approximately six weeks later, on May 31, 2011, I received a four-page single spaced letter from Carlyle. Carlyle asks me to "reconsider the decision of [the district court] to limit the payment of this voucher, including fees and expenses, to $7,000.00." Carlyle protests that the district court's $7,000 cap is "unfair," "inequitable," and "put [counsel] in the position of either violating [their] duty to Mr. Clay or risking performing uncompensated work." Attaching a series of exhibits, Carlyle explains some of the work she performed and asks me to review the record in the appeal. Carlyle "concede[s] that it would have been prudent to seek review of this order long before" but says attention to other matters and Missouri's delay in setting Clay's execution date explains her tardiness. Carlyle asks that I award her "reasonable compensation."
Section 3599 authorizes federally appointed counsel to represent indigent death row inmates in state clemency proceedings. See Harbison, 556 U.S. at ___, 129 S.Ct. at 1485; cf. Hill, 992 F.2d at 803. However—and this is the paramount consideration here—Carlyle does not cite, and I cannot find, any legal authority granting a chief circuit judge jurisdiction to review a district court's reduction of a CJA voucher.
The CJA generally permits counsel to submit ex parte applications to the district court for attorneys' fees, necessary expert services, and other services. See 18 U.S.C. § 3006A(d), (e). If counsel seeks funding in excess of certain predetermined limits, counsel must make a formal request and convince the district judge those limits are unreasonable and a waiver is necessary. See id. If the district court agrees, the district court certifies the request to the chief judge of the circuit for approval. See id.
The CJA is otherwise silent regarding the chief judge's role in the review of CJA vouchers. It would appear, then, that my review of a CJA voucher is limited to the approval or disapproval of certified requests for payments in excess of the statutory limits. Because the CJA provides no mechanism whatsoever for the review of reduced or denied CJA vouchers below the statutory limits, the fixing of any CJA award within the predetermined limits is exclusively within the discretion of the appointing authority.
Occasionally, court-appointed attorneys have attempted to appeal a district court's denial or reduction of a CJA voucher. As far as I am aware, every circuit court of appeals and chief judge to consider the issue has held the CJA does not confer any appellate jurisdiction to review such an appeal and thus the district court's denial or reduction is unreviewable. See, e.g., United States v. Johnson, 391 F.3d 946, 948 (8th Cir.2004); Rhinehart v. Eighth Circuit Court of Appeals, 218 Fed. Appx. 547, 548 (8th Cir.2007) (unpub. per curiam). See also United States v. French, 556 F.3d 1091, 1093 (10th Cir. 2009) (observing "[e]very circuit court of appeals to consider this jurisdictional question
Carlyle's contributions in Clay's service are important and appreciated. But it must be remembered that CJA service is first a professional responsibility, and no lawyer is entitled to full compensation for services for the public good.
There is no injustice in Carlyle failing to receive appellate review of the district judge's administrative refusal to remunerate her fully for her work on Clay's behalf in state clemency proceedings. See United States v. Smith, 76 F.Supp.2d 767, 773 (S.D.Tex.1999) ("[T]he court takes seriously its inherent obligation to safeguard the limited funds, supplied by American taxpayers, which are available for attorney reimbursement under the CJA. The Court also expects counsel, when accepting their appointments, to recognize their time honored public service obligations as Officers of the Court."). Carlyle's efforts on Clay's behalf are commendable, and I thank her for her service.
This matter is dismissed for lack of subject matter jurisdiction.