Rosenfield v. Wilkins , 280 F. App'x 275 ( 2008 )

Filed: May 29, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2182
(3:05-cv-00072-jbl)
STEVEN ROSENFIELD; EDWARD M. WAYLAND,
Plaintiffs - Appellants,
versus
THE HONORABLE WILLIAM W. WILKINS, acting in
his official capacity as Chief Judge of the
United States Court of Appeals for the Fourth
Circuit,
Defendant - Appellee.
O R D E R
The court amends its opinion filed May 28, 2008, as follows:
On page 3, line 13 -- “prospectI’ve” is replaced with the
word “prospective.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2182
STEVEN ROSENFIELD; EDWARD M. WAYLAND,
Plaintiffs - Appellants,
versus
THE HONORABLE WILLIAM W. WILKINS, acting in
his official capacity as Chief Judge of the
United States Court of Appeals for the Fourth
Circuit,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James B. Loken, Chief
Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation. (3:05-cv-00072-jbl)
Argued: February 1, 2008 Decided: May 28, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Senior Judge Ellis concurred.
ARGUED: Victor Michael Glasberg, VICTOR M. GLASBERG & ASSOCIATES,
Alexandria, Virginia; Steven David Rosenfield, Charlottesville,
Virginia, for Appellants. Thomas Linn Eckert, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia; Edward M. Wayland,
Montgomery, Alabama, for Appellants. John L. Brownlee, United
States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Court-appointed attorney Steven Rosenfield appeals the
district court’s dismissal of this putative class action against
William W. Wilkins in his official capacity as Chief Judge of the
United States Court of Appeals for the Fourth Circuit.
Rosenfield’s complaint alleges that the Fourth Circuit has failed
to provide adequate procedural protections in connection with the
calculation of fee awards under the Criminal Justice Act, in
violation of the due process clause of the Fifth Amendment.
While we appreciate the service provided by all court-
appointed attorneys, and although we are sympathetic to
Rosenfield’s concerns in particular, we find that recently
implemented changes to this court’s review of CJA awards provide
the prospective relief sought and substantially moot the appeal.
We also find that retroactive application of the new procedures to
Rosenfield’s award is not required by the Constitution. We
therefore affirm the district court’s dismissal for failure to
state a claim upon which relief can be granted.
I.
A.
The Criminal Justice Act of 1964 (“CJA,” or the “Act”), 18
U.S.C. § 3006A, entitles indigent defendants charged with certain
federal offenses to appointed counsel. The CJA contemplates that,
3
in a “substantial proportion” of cases under the Act, private
attorneys will accept the courts’ appointment, though bar
associations and other organizations may supply counsel as well.
§ 3006A(a)(3). The CJA also governs the payment of those attorneys
who accept a CJA appointment. The Act expressly provides that an
“appointed attorney shall . . . be compensated . . . for time
reasonably expended.” § 3006A(d)(1). At the conclusion of the
representation, the appointed attorney may seek compensation by
filing a claim “supported by a sworn written statement specifying
the time expended, services rendered, and expenses incurred” in the
course of the representation. § 3006A(d)(5). The “claim for
compensation and reimbursement shall be made to the . . . appellate
court before which the attorney provided representation to the
person involved.” Id. Ultimately, each such court “shall fix the
compensation and reimbursement to be paid to the attorney.” Id.
The hourly rate of compensation is statutorily defined,1 but is
1
Certain special provisions apply to representation provided
to capital defendants. See 18 U.S.C. § 3599. For example,
§ 3599(g) limits compensation to appointed counsel in capital cases
to “a rate of not more than $125 per hour for in-court and out-of-
court time.” 18 U.S.C. § 3599(g)(1). Though not codified in the
same section as the remainder of the Act, we treat the provisions
of 18 U.S.C. § 3599 as being substantively part of the CJA.
Section 3599 finds its origins in a 1988 congressional amendment to
the continuing criminal enterprise statute, altered to provide for
the appointment and compensation of attorneys and experts to
represent indigent defendants in capital cases. See 21 U.S.C.
§ 848(q)(4)-(10) (1988) (repealed 2006). Congress has since
transferred these provisions to 18 U.S.C. § 3599 without
substantive change. See USA PATRIOT Improvement and
Reauthorization Act of 2005, Pub. L. No. 109-177, § 222, 120 Stat.
4subject to periodic upward adjustments by the Judicial Conference
of the United States.2
The CJA is silent, however, regarding the availability of
judicial review of the compensation fixed by the courts hearing
from CJA-appointed counsel. In particular, the CJA does not
describe any avenues available to an appointed attorney who
receives a compensation award that is less than the amount
requested in the attorney’s filing and sworn statement.
Within the broad framework it establishes, the CJA requires
each federal district court, with the approval of the judicial
council of the circuit,3 to adopt a plan for implementing the Act.
See § 3006A(a). The Judicial Conference provides instruction to
192, 231-32 (2006).
2
The Judicial Conference of the United States is a body of
judges, constituted by statute, whose “fundamental purpose . . . is
to make policy with regard to the administration of the U.S.
courts.” Judicial Conference of the United States,
http://www.uscourts.gov/judconf.html. The body comprises the Chief
Justice of the United States, “the chief judge of each judicial
circuit, the chief judge of the Court of International Trade, and
a district judge from each judicial circuit” who meet annually to
make such policy decisions. 28 U.S.C. § 331.
3
Like the Judicial Conference of the United States, the
“judicial council” in each circuit is a policy-making body
responsible for “mak[ing] all necessary and appropriate orders for
the effective and expeditious administration of justice within its
circuit.” 28 U.S.C. § 332(d)(1). The judicial council comprises
the chief judge of the circuit, “and an equal number of circuit
judges and district judges of the circuit.” Id. § 332(a)(1).
5
courts for the creation and maintenance of a plan.4 See Guidelines
for the Administration of the Criminal Justice Act and Related
S t a t u t e s ( t h e “ C J A G u i d e l i n e s ” ) ,
http://www.uscourts.gov/defenderservices/Section_A.cfm. The Fourth
Circuit has adopted such a plan for implementing the CJA with
respect to appointed representation on appeal. See Plan of the
United States Court of Appeals for the Fourth Circuit In
Implementation of the Criminal Justice Act (Sept. 17, 2007) (the
“Plan”), http://www.ca4.uscourts.gov/pdf/CJAPlan.pdf.
Both the Plan and the CJA Guidelines govern compensation of
appointed attorneys who appear before the Fourth Circuit Court of
Appeals.5 According to the Plan, appointed counsel must submit, at
the conclusion of representation, a voucher for compensation and
reimbursement. See Plan, Part VI (1). The Plan explains that
“[t]he clerk will determine the amount of compensation and
reimbursement to be paid. The approved voucher will then be
4
The Judicial Conference Committee on Defender Services is
tasked with providing “general policy guidance in interpretation
and application of the Criminal Justice Act and related statutes.”
Judicial Conference of the United States, Jurisdictional Statements
( M a r c h 1 2 , 2 0 0 7 ) a v a i l a b l e a t
http://www.uscourts.gov/judconf_jurisdictions.htm#Defender. This
includes “approving non-controversial revisions” to the CJA
Guidelines and “recommending approval to the Judicial Conference
for other amendments to these guidelines.” Id.
5
The Plan incorporates the CJA Guidelines and its amendments.
See Plan, Part VII (1) (“This Plan shall be subject to and held to
have been amended pro tanto by any rule or regulation adopted by
the Judicial Conference of the United States concerning the
operation of plans under the [CJA].”).
6
reviewed by the Circuit Executive, signed by the Chief Judge, and
forwarded to the Administrative Office for payment or further
handling.” Id.
Just as the CJA itself is silent regarding appeals of awards
that are smaller than the requested amount, so too were the Plan
and the CJA Guidelines silent at the time Rosenfield initiated this
suit. The CJA Guidelines have since been amended, however. In
March 2006, the Judicial Conference approved a CJA guideline
regarding decisions to authorize payments of less than the amounts
requested. See Report of the Proceedings of the Judicial
Conference of the United States 15-16 (Mar. 14, 2006), at 15-16,
http://www.uscourts.gov/06MarProceedings.pdf. The CJA Guidelines
now provide that “[i]f the court determines that a claim should be
reduced, appointed counsel should be provided (a) prior notice of
the proposed reduction with a brief statement of the reason(s) for
it, and (b) an opportunity to address the matter.” CJA Guidelines
§ 2.22. The Judicial Conference’s addition of this language to
§ 2.22 simultaneously incorporated the guideline into the Fourth
Circuit’s Plan. See Plan, Part VII (1).
B.
Rosenfield was appointed pursuant to the CJA to represent an
indigent inmate on Virginia’s death row in federal habeas corpus
petitions before the Fourth Circuit and the United States Supreme
Court, and in a petition for clemency to the Governor of Virginia.
7
At the conclusion of representation, Rosenfield submitted a voucher
requesting compensation of $35,456.25 for “time reasonably
expended” working on the case, based upon $125 per hour, the
statutory maximum rate for work on capital cases at that time.6
See 21 U.S.C. § 848(q)(10)(A) (1988) (repealed 2006). Rosenfield’s
voucher was reviewed first by the Circuit Executive’s Office.
Next, the request was reviewed by each of the circuit judges on the
hearing panel. Finally, the hearing panel forwarded its
recommendations to the chief circuit judge for a third and final
review. Then-Chief Judge Wilkins approved payment for only
$10,000. J.A. 25-26. Rosenfield moved for reconsideration of the
Chief Judge’s decision and also petitioned for an en banc review of
the fee award. Both requests were denied without explanation.
J.A. 64.
Rosenfield then filed this action in the District Court for
the Western District of Virginia, alleging that the Fourth
Circuit’s then-effective procedures for compensating appointed
attorneys under the CJA violated his Fifth Amendment right to
procedural due process because requests for compensation could be
reduced without (1) an explanation of why the request was not paid
in full, (2) notice as to what work would or would not be
compensated, and (3) rules or procedures permitting a lawyer to
6
Petitioner Edward M. Wayland, Rosenfield’s law partner at the
time, also worked on the case. Rosenfield’s voucher included a
claim for compensation for time spent by Wayland.
8
seek review of the amount awarded. Rosenfield’s complaint seeks
declaratory and injunctive relief requiring this court to implement
procedural safeguards like those adopted by the Judicial
Conference, and reconsideration of his voucher under the new
procedures.
District Court Judge Norman K. Moon, initially assigned to
this case, recused himself sua sponte, noting the appearance of
impropriety that might be present in his rendering a decision in a
case involving Judge Wilkins, who regularly hears appeals from the
district court judges in the Fourth Circuit. Ultimately, Chief
Judge James B. Loken, United States Court of Appeals for the Eighth
Circuit (“Chief Judge Loken”), accepted an intercircuit designation
and assignment to act as a district court judge in this matter.
See 28 U.S.C. § 291.
Judge Wilkins moved for dismissal on the grounds that the
court lacked jurisdiction to hear the case and that the complaint
did not state a claim upon which relief might be granted. See Fed.
R. Civ. P. 12(b)(6). After the motion to dismiss had already been
fully briefed, Rosenfield filed a motion asking Chief Judge Loken
to recuse himself. In a memorandum opinion, Chief Judge Loken,
invoking the “Rule of Necessity,” see United States v. Will, 449
U.S. 200, 213-16 (1980), denied the motion to recuse.7 He also
7
Rosenfield raises this issue again on appeal. He argues that
Chief-Judge Loken’s impartiality “might reasonably be questioned,”
28 U.S.C. § 455(a), because (1) as a chief circuit judge, Chief
9
granted the motion to dismiss, finding that, since Rosenfield did
not enjoy a property right in the specific amount he requested as
a CJA award, he had no due process cause of action under Bivens v.
Fed. Narcotics Agents, 403 U.S. 388 (1971), which held that private
citizens have a federal cause of action for damages against federal
agents who violate Fourth Amendment rights.
II.
As a threshold matter, we first consider whether we, and the
district court below, may properly exercise subject-matter
jurisdiction over this action. Of course, “every appellate court
has a special obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under
review.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986) (internal quotations omitted). The obligation is all the
more pressing here, where the appeal indirectly challenges an
administrative, and not a judicial, determination of the court.
Judge Loken is “personally involved in policy-making and
administrative practices relating to attorney compensation under
the CJA,” J.A. 6-7, and (2) Chief Judge Loken makes CJA
compensation decisions under the Eighth Circuit Plan, which is
procedurally similar to the Fourth Circuit Plan. Rosenfield has
failed, however, to distinguish Judge Loken’s fee-determining
authority under the CJA from that of every other Article III judge
who may be called upon to review CJA vouchers. Nor has Rosenfield
identified a single federal judge who would not be subject to the
conflict he alleges. We therefore hold that Chief Judge Loken did
not abuse his discretion in invoking the “Rule of Necessity.” See
Sales v. Grant, 158 F.3d 768, 781 (4th Cir. 1998).
10
Challenges to CJA awards usually arise under the aegis of the
case in which the appointed representation was rendered in the form
of an appeal of an order issued by the district court or a petition
for rehearing. See, e.g., United States v. Smith, 633 F.2d 739(7th Cir. 1980) (appealing a determination by the district court
disallowing attorney fees in excess of maximum amount fixed by
CJA); United States v. Melendez-Carrion, 811 F.2d 780 (2d Cir.
1987) (petitioning for review of a decision by a circuit judge that
reduced the compensation sought by counsel for services provided
pursuant to the CJA). In that context, where appointed counsel has
sought review of an award from a court other than the court in
which the representation of the indigent defendant occurred, courts
have held that fee determinations under the CJA are administrative
actions and the discretion to amend or review CJA awards rests
entirely with the court presiding over the underlying criminal
case. See United States v. Linney, 134 F.3d 274, 281 (4th Cir.
1998); see also, United States v. Walton (In re Baker), 693 F.2d
925, 926-27 (9th Cir. 1982) (per curiam) (“[O]rders of the district
courts establishing the amount of attorneys fees under the [CJA]
are not appealable.”); United States v. Rodriguez, 833 F.2d 1536,
1537 (11th Cir. 1987) (per curiam) ( CJA fee determination are
“simply an administrative action on the part of the judge, rather
than a decision of a judicial character,” and thus not appealable);
In re Gross, 704 F.2d 670, 673 (2d. Cir. 1983) (opinion of Chief
11
Judge Feinberg) (“[T]he chief judge of a circuit has no power to
entertain an appeal from a denial of certification of excess
payment by the court in which the representation is rendered.”);
Smith, 633 F.3d at 742 (“[A] determination by a district court
disallowing fees in excess of the maximum limit under the [CJA] is
not a reviewable order.”); Melendez-Carrion, 811 F.2d at 782 (“[A]n
appeal from a decision of one circuit judge regarding compensation
under the [CJA] can be brought to the panel that heard the
appeal.”).
The case before us, however, posits a due process violation
arising out of a request for compensation, and does not challenge
the underlying administrative decision regarding the appropriate
amount of fees. Because Rosenfield only challenges the adequacy of
the process he received, case law analyzing the question of
jurisdiction in the context of a direct appeal of an administrative
order is not determinative of the question of jurisdiction here.
Therefore, we must start afresh to consider the district court’s
jurisdiction to entertain a constitutional challenge to an
administrative action by a judicial officer.
Rosenfield contends that the district court had jurisdiction
under 28 U.S.C. § 1331, which grants “[t]he district courts . . .
original jurisdiction of all civil actions arising under the
12
Constitution, laws, or treaties of the United States.”8 Since his
action alleges denial of a property interest in violation of the
due process clause of the Fifth Amendment, Rosenfield argues that
§ 1331 plainly conferred to the district court jurisdiction over
the action.
The import of § 1331 is well-settled. Under the provision,
“Congress has given the lower federal courts jurisdiction to hear
‘only those cases in which a well-pleaded complaint establishes
either that federal law creates the cause of action or . . . that
the plaintiff’s right to relief necessarily depends on resolution
of a substantial question of federal law.’” Interstate Petroleum
Corp. v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001) (en banc)
(quoting Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463
U.S. 1, 27 (1983)). A complaint presents a question of federal law
when the right to recovery under the complaint “will be supported
if the Constitution or laws of the United States are given one
construction or effect, and defeated if they receive another.”
Gully v. First Nat. Bank, 299 U.S. 109, 112 (1936).
Rosenfield alleges that compensation under the CJA is a
protected property interest and that the Fourth Circuit’s fee
8
Rosenfield also claimed jurisdiction in the district court
based on Bivens. The district court concluded, however, that
Rosenfield could not assert a cause of action under Bivens.
Because we find jurisdiction proper under § 1331, we decline to
address the question of whether Rosenfield has properly alleged a
cause of action under Bivens.
13
approval process violates his procedural due process rights in such
compensation under the Fifth Amendment. On its face, the complaint
clearly establishes that the cause of action is predicated upon an
alleged constitutional violation. Whether Rosenfield is entitled
to recovery depends upon two questions; (1) an interpretation of 18
U.S.C. § 3006A(d) as to the existence of a property interest; and
(2) a determination of the scope of the Fifth Amendment’s
protection against deprivations of property without due process of
law. Therefore, the complaint plainly raises a question of federal
law, which a district court could only decide after it had assumed
jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946) (“[T]he court
must assume jurisdiction to decide whether the allegations state a
cause of action on which the court can grant relief . . . [f]or it
is well settled that the failure to state a proper cause of action
calls for a judgment on the merits and not for a dismissal for want
of jurisdiction.”).
We hold, therefore, that the district court had jurisdiction
over Rosenfield’s Fifth Amendment claims pursuant to 28 U.S.C.
§ 1331 and that this court has jurisdiction over this appeal
pursuant to 28 U.S.C. § 1291. See Blanck v. McKeen, 707 F.2d 817(4th Cir. 1983) (per curiam) (allowing cause of action arising
under Fifth Amendment with jurisdiction based on § 1331); Roth v.
King, 449 F.3d 1272, 1280 (D.C. Cir. 2006) (holding that the
14
district court had jurisdiction over appellees’ Fifth Amendment
claim pursuant to 18 U.S.C. § 1331).9
III.
Having satisfied ourselves that we properly exercise subject-
matter jurisdiction over this type of appeal generally, we are
nevertheless compelled to consider whether we retain jurisdiction
over this specific action in light of the March 2006 amendments to
the CJA Guidelines. Though neither party has raised the issue, we
note that we lack jurisdiction “to decide questions that cannot
affect the rights of litigants in the case before [us],” North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam). Because
it appears that the amended CJA Guidelines provide the kind of
relief going forward that Rosenfield seeks, we are obligated to
consider whether the amendments moot his appeal; see Friedman’s,
Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (considering
mootness sua sponte). “But we need not decide whether this
development moots the case in strict constitutional case or
9
The analysis in Roth is particularly germane to the instant
appeal. In Roth, a class of attorneys seeking injunctive and
declaratory relief brought an action under the Fifth Amendment
against judges of the Superior Court responsible for devising and
implementing a system for appointment of attorneys who would be
eligible to receive compensation under the CJA. The complaint
challenged the Superior Court’s attorney appointment system,
alleging a property interest in their existing practice before the
court and that the appointment system violated the Fifth Amendment
by “taking” this property without due process of law. Id. at 1278-
79.
15
controversy terms, because we conclude that we should treat this
appeal as moot for prudential reasons.” S-1 v. Spangler, 832 F.2d
294, 297 (4th Cir. 1987); Nationwide Mut. Ins. Co. v. Burke, 897
F.2d 734, 739 (4th Cir. 1990) (“prudential considerations compel us
to declare the declaratory judgment action . . . mooted by
intervening events.”).
In essence, Rosenfield’s complaint contends that because the
CJA confers a property interest in compensation for time reasonably
expended by court-appointed attorneys, the Due Process Clause
requires that attorneys be given the basic elements of fundamental
fairness. He complains that the Fourth Circuit Plan offers no
published standards governing fee awards and no rules or procedures
for seeking an explanation of the reasons for the amount awarded or
review of the chief judge’s decision.
With the adoption of new language in § 2.22, however, the Plan
now requires that if a court decides to reduce a requested claim,
counsel should be provided “a) prior notice of the proposed
reduction with a brief statement of the reason(s) for it, and (b)
an opportunity to address the matter.” CJA Guidelines § 2.22. As
regards the injunctive relief that he seeks, Rosenfield admits that
this very language in § 2.22 “could well have been drafted by
Rosenfield,” Reply Br. at 6. The procedural safeguards provided
for in § 2.22 therefore adequately address the concerns raised in
Rosenfield’s complaint. To the extent that Rosenfield seeks
16
promulgation of new rules and procedures in the Fourth Circuit, and
these rules in particular, “we should not engage in what would be
a meaningless adjudication of an issue of considerable difficulty,
and we decline to do so.” Nationwide, 897 F.3d at 739. (internal
quotations omitted); see also Spangler, 832 F.2d at 297 (declining
to adjudicate claim when “the specific relief sought . . . no
longer has sufficient utility to justify decision of th[e] case on
the merits.”). Because the challenged aspects of the Plan have
been remedied, Rosenfield’s claims for prospective injunctive
relief are moot.
IV.
As we have described, Rosenfield, and, indeed, all CJA
attorneys, will enjoy the procedural protections articulated in
§ 2.22 for the able service they provide in this court going
forward. The only remaining issue before us is whether the
requests for compensation for fees and expenses submitted by
Rosenfield should be reconsidered under the new guideline.10 Before
we can find that an injunction requiring a retroactive hearing is
appropriate, we consider, assuming that Rosenfield has suffered the
10
Our consideration of this issue is wholly distinct from a
review of Rosenfield’s underlying fee award. We provide no
independent forum outside the administrative process to challenge
the fee award. See Linney, 134 F.3d at 281(Only “the court in
which the representation of the indigent defendant occurred [has]
the authority to fix the compensation and reimbursement to be
paid.”).
17
deprivation of a constitutionally protected property interest,
which is not at all clear, whether the process Rosenfield received
was constitutionally sufficient.11 See United States v. Al-Hamdi,
356 F.3d 564, 574-75 (4th Cir. 2004) (assuming arguendo that a
liberty or property interest exists and proceeding to the question
of whether the procedures afforded were constitutionally
sufficient).
Because Rosenfield contends that § 2.22 satisfies the
procedural protections owed to CJA attorneys whose fees are
reduced, we first compare the process Rosenfield received with the
process provided in § 2.22. To the extent that Rosenfield did not
receive the procedural safeguards provided in § 2.22, we consider
whether the absence of such procedures violated his due process
rights.
11
“[W]e pose two questions when reviewing a claimed procedural
due process violation: ‘[W]hether there exists a liberty or
property interest, which has been interfered with by the State,
[and] whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Slade v. Hampton Rds. Reg’l Jail,
407 F.3d 243, 253 (4th Cir. 2005) (quoting Ky. Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (citations omitted)) (second
alteration in original). We decline to decide the issue of whether
the CJA confers a property interest in fee awards because we find,
assuming that such a property interest exists, that Rosenfield
received constitutionally adequate procedural protections.
18
A.
Rosenfield submitted vouchers to this court requesting
reimbursement in the amount of $38,393.75.12 A court order signed
by then-Chief Judge Wilkins approved, without explanation, an award
amounting to $10,000. As communicated to Rosenfield in a letter
from the Circuit Executive, Rosenfield’s voucher underwent a three-
step review process, which included review by (1) the Circuit
Executive’s Office, (2) the circuit judges on the hearing panel,
and finally (3) the chief circuit judge, who made the final
decision. Rosenfield then moved for reconsideration of the award,
explaining in detail why the hours spent on the case were necessary
and the reason he was entitled to the fee he requested. The court
denied the motion without explanation. Rosenfield then petitioned
for an en banc administrative review, which was also denied without
explanation.
By way of comparison, § 2.22 states that if the court
determines that a claim should be reduced, the appointed counsel
should be provided with prior notice of the reasons for the
proposed voucher reduction and an opportunity to respond. “The
guideline specifically endorses informality and flexibility in both
communication of the notice and in the evaluation of the
12
This figure includes $35,456.25 in fees and $2,937.50 in out
of pocket expenses.
19
justification offered by counsel; no hearing formal or otherwise is
required.” Judicial Conference Mem. (April 7, 2006).
The court order authorizing payment put Rosenfield on notice
of the voucher reduction. In filing a motion for reconsideration
and petition for rehearing, Rosenfield received not just one
opportunity to respond, but two. On two separate occasions the
court reviewed Rosenfield’s detailed justification for the
compensation he requested. Therefore, it seems that the only
procedural safeguard that Rosenfield would have liked, but that he
did not receive was an explanation for the reduction in the fees he
requested.
B.
We now consider, then, the narrow question of whether the
court’s failure to provide an explanation for the voucher reduction
violated Rosenfield’s right to procedural due process. The
essential requirements of procedural due process are notice and an
opportunity to be heard. See Joint Anti-Facist Refugee Comm. v.
McGrath, 341 U.S. 123, 178 (1951). Beyond that minimum
requirement, due process is “flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). The process warranted in a given
case depends upon (1) the nature of the private interest, (2) the
adequacy of the existing procedure in protecting that interest, and
20
(3) the governmental interest in the efficient administration of
the applicable law. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
First, we examine the nature of the private interest at stake.
Even assuming that Rosenfield has a property interest in a CJA fee,
“the CJA statute gives the discretion for compensation and
reimbursement of CJA appointed attorneys to the court presiding
over the underlying criminal case for which the CJA compensation
may be awarded.” Linney, 134 F.3d at 281. The private interest of
the attorney, therefore, is not to the fee requested, but to a
reasonable fee set by the court. See 18 U.S.C. § 3006A.
Second, we consider the adequacy of the then-prevailing
procedures in protecting Rosenfield’s interest. It is helpful in
this context to examine how the 2006 amendments altered the
procedures regarding the provision of an explanation for a
reduction in a requested award. In 2006, the Judicial Conference
decided to provide, going forward, an explanation to CJA attorneys
when requested awards are reduced. The purpose of providing prior
notification and an explanation for the reduction is to promote
fairness and efficiency. See Judicial Conference Mem. (April 7,
2006). The explanation for the reduction, therefore, only has
bearing on the fairness or efficiency of the voucher review process
to the extent that it assists the attorney in his or her response
once an initial determination is made. Given the extensive detail
in Rosenfield’s request for reconsideration and petition for en
21
banc consideration, and the court’s discretion in making fee
determinations, we fail to see how, under the present
circumstances, a contemporaneous explanation of the voucher
reduction would have more adequately protected Rosenfield’s
interests.
Finally, we note, as the third consideration in determining
whether Rosenfield was afforded adequate procedure, that the court
has a substantial interest in avoiding unnecessary reviews of CJA
fee determinations. Where Rosenfield received notification and the
court twice evaluated his justification, reconsideration of
Rosenfield’s voucher under the new rules would serve no useful
purpose.
At bottom, we find, assuming that he held a protected property
interest in a reasonable fee, that Rosenfield was afforded
constitutionally adequate procedural protections in the reduction
of his requested award. While we are grateful for the service
provided by Rosenfield and other CJA attorneys, and while we are
committed to providing the level of review described in the Plan
and the updated CJA Guidelines going forward, we cannot say that
the careful processing of Rosenfield’s award here was
constitutionally deficient.
22
V.
Because we find that Rosenfield has already received
sufficient process, the district court’s grant of a motion to
dismiss for failure to state a claim on which relief can be granted
is
AFFIRMED.
23