statutory maximum of $30 per hour for in-court service and $20
per hour for out-of-court service as specified in
18 U.S.C. § 3006A(d)(1)."
On February 22, 1982, Mills filed suit in the United States
District Court for the Northern District of Illinois, Eastern
Division, alleging the jurisdiction of the district court
pursuant to 28 U.S.C. § 1346(a)(2) (1976 & Supp. II 1978). In
her complaint Mills asks the court to order the Government to
pay her the sum of $127.50 as the compensation due for services
rendered in representing Dobbs and award her the cost of this
action, including reasonable attorney's fees pursuant to
28 U.S.C. § 2412 (1976 & Supp. IV 1980).
Mills bases her position on the premise that the "not to
exceed" language of the Criminal Justice Act does not make
existence of a bar association minimum fee schedule a
condition precedent to a rate adjustment. She sets forth three
reasons as to why she reaches this conclusion: (i) that the
language of the statute does not require that a bar
association minimum exist; (ii) that Congress knew how to
draft mandatory language; and (iii) that nothing in the
statute requires a local bar association to exist in every
court district or, if it does exist, to have a minimum fee.
She also cites several principles of statutory construction
and the legislative history of the Criminal Justice Act to
support her position. In addition, Mills contends that even if
existence of a bar association fee schedule were a condition
precedent, the Judicial Council, in acting upon the
recommendation of the Seventh Circuit Bar Association,
satisfied this requirement.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Id. Since no dispute as to a material fact is being raised by
the parties, and the court finds none, it is appropriate to
decide this case as a matter of law. See Illinois Migrant
Council v. Campbell Soup Co., 438 F. Supp. 222, 225 (N.D.Ill.
1977), rev'd on other grounds, 574 F.2d 374 (7th Cir. 1978).
The basic issues presented in this case are: (i) whether the
existence of a bar association fee schedule is a condition
precedent to a judicial council raising the hourly
compensation to attorneys representing defendants pursuant to
the Criminal Justice Act and (ii) if existence of such a fee
schedule is a condition precedent, how this requirement is
affected by the United States Supreme Court decision of
Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44
L.Ed.2d 572 (1975), in which a bar association minimum fee
schedule was held to be within the reach of the Sherman Act,
15 U.S.C. § 1 (1976).
As Mills accurately points out in "Plaintiff's Memorandum in
Support of Her Motion for Summary Judgment", the starting
point in construing a statute is the statute itself. See
Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98
S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); Chicago Transit
Authority v. Adams, 607 F.2d 1284, 1289 (7th Cir. 1979), cert.
denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1979).
However, her contention that it is clear from the language of
the Criminal Justice Act that a bar association fee schedule
need not exist in order for a judicial council to raise
attorney's fees is not accepted. Indeed, the more persuasive
argument is that this language contemplates that a fee schedule
will exist. Accordingly, to determine how the statute should be
construed, it is helpful to consider the legislative history of
the Act and general rules of statutory interpretation.
The Criminal Justice Act, passed by Congress in 1964,
originally provided that the hourly fee for representing a
defendant could not exceed $15 for time in court or before a
U.S. commissioner and $10 for out-of-court time. See Criminal
Justice Act of 1964, Pub.L.No.88-455, § 2, 78 Stat. 552 (1964).
In 1970 an amendment (the "1970 Amendment") was enacted which
the substitution of the fee provision in question in this case
in place of the original provision. See Pub.L.No. 91-447, § 1,
84 Stat. 916 (1970), codified at 18 U.S.C. § 3006A(d)(1)
The legislative history of the 1970 Amendment indicates that
the revisions originally proposed by the Senate and submitted
to the Committee on the Judiciary of the House of
Representatives would have raised the hourly compensation for
all attorney time to $30. See H.R.Rep.No. 1546, 91st Cong., 2d
Sess., reprinted in 1970 U.S. Code Cong. & Ad.News 3982. The
House Judiciary Committee rejected this approach and reinserted
the distinction between court and non-court time. It also added
the provision that a judicial council could modify the hourly
rate "not to exceed the minimum hourly scale established by a
bar association for similar services rendered in the district."
Id.; 18 U.S.C. § 3006A(d)(1) (1976).
The revised bill was managed in the House of Representatives
by Representative Robert William Kastenmeier of Wisconsin,
chairman of the House Subcommittee on the Courts, Civil
Liberties and the Administration of Justice. In urging its
passage, Representative Kastenmeier stated:
Nothing in the legislation delegates the
authority of Congress to determine rates of
compensation to local bar associations. Rates of
compensation and maximum amounts of compensation
are to be fixed by the judicial councils within
the maximums prescribed by Congress. . . . If in
a particular case the judicial council feels that
the hourly maximums are inadequate, it is
nevertheless limited to [the] minimum rate, if
any, set by a bar association.
116 Cong.Rec. 34811 (1970). He responded to the question of
"Why do you set up $30 an hour, $20 an hour, and then turn
around and say in the same breath that the Judicial Council
can change it if it wants to" by stating:
The other amendment [the provision giving the
judicial councils authority to raise the hourly
rate] is an exceptional provision not to be
generally used. It provides that the Judicial
Council of the Circuit, where literally the
Criminal Justice Act is unworkable [,] some sort
of additional compensation, [sic] may fix a rate
not more than the local bar association rate.
That, as I said, is an exceptional provision,
but we regard it as a sort of safety valve for
some cases to avoid an inequity and a disservice
to the act.
Id. at 34812. These comments indicate that Representative
Kastenmeier believed that under the 1970 Amendment the
discretion of a judicial council to raise fees was limited by a
specific ceiling — the minimum bar association fee schedule —
and that he presumed the existence of such a fee schedule.