Rosenfield v. Wilkins

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 UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.

4
subject 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.

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 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.

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