The opinion of the court was delivered by: Flaum, District Judge:
This matter comes before the court on a motion for summary
judgment by defendant United States of America (the
"Government") and a cross motion for summary judgment by
plaintiff Martha A. Mills ("Mills") made pursuant to Federal
Rule of Civil Procedure 56(c). For the reasons set forth
below, the Government's motion for summary judgment on the
complaint is granted and Mills' cross motion is denied.
The pertinent facts of this case are as follows:
The Criminal Justice Act of 1964 (the "Criminal Justice
Act"), 18 U.S.C. § 3006A (1976), provides that an attorney
appointed pursuant to its provisions, or the organization
supplying the attorney so appointed, shall "be compensated at a
rate not exceeding $30 per hour for time expended in court or
before a United States magistrate and $20 per hour for time
reasonably expended out of court, or such other hourly rate,
fixed by the Judicial Council of the Circuit, not to exceed the
minimum hourly scale established by a bar association for
similar services rendered in the district."
18 U.S.C. § 3006A(d)(1) (1976). On December 18, 1981, the Judicial Council
of the United States Court of Appeals for the Seventh Circuit
(the "Judicial Council"), acting on a recommendation by the Bar
Association of the Seventh Federal Circuit (the "Seventh
Circuit Bar Association"), increased the maximum fees to $55
per hour for time spent in court or before a magistrate and $45
per hour for out-of-court time.
Mills, an attorney engaged in the private practice of law,
is a panel attorney in the Federal Defender Program for the
Northern District of Illinois who accepts court appointments
under the Criminal Justice Act. In that capacity, on January
8, 1982, Mills was appointed to represent Stanley Dobbs
("Dobbs"), a defendant in a criminal case pending in the
United States District Court for the Northern District of
Illinois. She subsequently submitted a request for the sum of
$127.50 for time spent representing Dobbs which was computed
on the basis of the hourly rates set by the Judicial Council
on December 18, 1981. The United States magistrate before whom
Mills appeared approved this request, and it was submitted to
the Administrative Office of the United States Courts (the
"Administrative Office") for processing and payment.
The Administrative Office, claiming that the Judicial
Council lacked the authority to raise the hourly rates to $55
and $45, respectively, refused to pay the full amount of
$127.50. In a letter to Mills dated February 18, 1982, R.E.
Moreland, Chief of the Audit Branch, Financial Management
Division, of the Administrative Office, stated "It is the
position of this office that we do not have the authority to
reimburse attorneys for services provided defendants
proceeding under the Criminal Justice Act in excess of those
maximum hourly rates prescribed by the Act. We are bound by
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 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. ...