W.D. Okla., D.C. No. 5:12-CV-00758-M
Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
Timothy M. Tymkovich, Circuit Judge
James Alexander Drummond, attorney for the now-deceased plaintiff Michael Edward Hooper, appeals from a decision of the district court refusing to compensate 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.
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 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).
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 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).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. ...