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United States v. Gristeau

decided: October 6, 1980.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V JAMES F. SMITH, DEFENDANT; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JEAN GRISTEAU, DEFENDANT; CHARLES EDWARD BUNN, PETITIONER, V. ATTORNEY GENERAL OF THE UNITED STATES, ET AL., RESPONDENTS



Appeals from the United States District Court for the Eastern District of Wisconsin. No. 78-Cr-157 -- Myron L. Gordon, Judge No. 78-Cr-158 -- Robert W. Warren, Judge . Appeal from the United States District Court for the Eastern District of Wisconsin. No. 78-CR-161 -- Robert W. Warren, Judge . Appeal from the United States District Court for the Southern District of Illinois. No. 75-3064 -- James L. Foreman, Chief Judge .

Before Cummings and Bauer, Circuit Judges, and Crowley, District Judge.*fn*

Author: Crowley

Three court-appointed counsel appeal from determinations of the district courts' disallowing compensation in excess of the maximum amount fixed by the Criminal Justice Act, 18 U.S.C. § 3006A(d)(2). In each of the cases, the district court refused to certify that the representation was "extended or complex" and that excess fees were "necessary to provide fair compensation." 18 U.S.C. § 3006A(d)(3).

The issue is whether those determinations are orders reviewable in this Court. For the reasons set forth below, we conclude that they are not.

Mark Rogers was appointed to represent James Farrell Smith in two felony cases pending before different judges in the Eastern District of Wisconsin. Rogers requested compensation of $3,901.16 in one case and $2,263.00 in the other. Each judge approved $1,000 plus expenses.

Thomas Bush, appointed to represent Jean Gristeau in a felony case in the Eastern District of Wisconsin, sought fees of $3,050.67. The district judge authorized $1,000.00 compensation plus expenses.

The third appeal arises from representation rendered on behalf of Charles Edward Bunn, a petitioner seeking a writ of habeas corpus in the Southern District of Illinois. Jona Goldschmidt, his court-appointed counsel, requested compensation of $1,444.00. The district judge approved payment of $250.00.

The Criminal Justice Act, 18 U.S.C. § 3006A, authorizes compensation for services rendered and expenses incurred by court-appointed counsel. The Act places ceilings on the amount of compensation that can be awarded. For representation in felony cases the statutory maximum is $1,000.00; for representation in other kinds of ancillary proceedings, including habeas corpus, $250.00 is the limit. 18 U.S.C. § 3006A(d)(2).

The statute also contains a provision for fee authorizations in excess of those ceilings. However, that provision only applies when the representation is "extended or complex" and the court in which the representation is rendered "certifies that the amount of the excess payment is necessary to provide fair compensation." 18 U.S.C. § 3006A(d)(3). In addition, excess payments must be approved by the chief judge of the circuit. 18 U.S.C. § 3006A(d)(3).

There is no provision in the Act for review of awards made within the specified limits. Similarly, the legislative history is silent on whether any review was intended.*fn1

Nevertheless, the tone of the provisions fixing the limits are mandatory and the provisions governing the filing of claims vest the function of awarding compensation in the court in which representation was rendered. Thus, when counsel is appointed to prosecute an appeal, a judge in the court of appeals determines an appropriate award. When representation is provided in the district court, the judge presiding over the proceeding fixes the fees. And when representation is rendered solely before the magistrate, the magistrate makes the determination. 18 U.S.C. § 3006A(d)(4). See also H.R. Rep. No. 91-1546, 91st Cong. 2d Sess., reprinted in (1970) U.S.Code Cong. & Ad.News, 3982, 3991.

This statutory scheme clearly requires that appropriate awards of compensation are left to the discretion of the court which has had the opportunity to view the proceedings first hand. Moreover, although some compensation must be awarded appointed counsel under the Criminal Justice Act, United States ex rel. Bibbs v. Twomey, 538 F.2d 151, 154 (7th Cir. 1976), cert. denied, 429 U.S. 1102, 97 S. Ct. 1126, 51 L. Ed. 2d 551 (1977), the district judge is accorded "exclusive discretion" in fixing the amount. United States v. Durka, 490 F.2d 478, 480 (7th Cir. 1973).

In United States v. D'Andrea, 612 F.2d 1386 (7th Cir. 1980), we held that when a circuit judge acting for the Court, certified compensation in less than the amount requested, a panel could review the claimed compensation in a petition for rehearing. Although not indicated in the opinion, that result is clearly consistent with the purposes of the Criminal Justice Act, because the three judges before whom the service was rendered would be jointly reviewing the action taken by a single judge. However, we also held that when the chief judge approved compensation for less than the amount certified by the court in which representation was rendered, no review was available in this Court. The attorney's remedies were limited to a motion for reconsideration addressed to the chief judge and, by dicta, to mandamus in the United States Supreme Court.

D'Andrea was premised on this Court's view of the function assigned to each body in the claims procedure of the Criminal Justice Act. Thus, requests for review of awards for each step in the procedure were found to be properly ...


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