United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-8016
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In re Elizabeth Unger Carlyle, * Appeal from the United States
* District Court for the
Petitioner. * Western District of Missouri.
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Submitted: May 31, 2011
Filed: July 11, 2011
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Before RILEY, Chief Judge, in chambers.
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RILEY, Chief Judge.
Elizabeth Unger Carlyle, an attorney appointed under the Criminal Justice Act
(CJA), 18 U.S.C. § 3006A, appeals from various orders of the district court1 to me in
my capacity as Chief Judge of the United States Court of Appeals for the Eighth
Circuit. Carlyle asked the district court to reimburse her $37,876.80 for various extra-
judicial activities undertaken “to delay and prevent” the execution of Richard D. Clay,
a Missouri convicted murderer. The district court granted in part and denied in part
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
Carlyle’s requests, authorizing $7,000 for Carlyle to pursue state clemency
proceedings on Clay’s behalf. I dismiss Carlyle’s appeal for lack of jurisdiction.2
I. BACKGROUND
At all relevant times, Clay was an indigent inmate on Missouri’s death row. A
Missouri jury found Stacy Martindale hired Clay in 1994 to murder her husband,
Randy Martindale. See generally, Clay v. Bowersox, 367 F.3d 993, 1006 (8th Cir.
2004) (reversing district court’s grant of habeas relief); State v. Clay, 975 S.W.2d 121,
129 (Mo. 1998) (affirming Clay’s conviction and death sentence, as well as the denial
of state post-conviction relief).
In January 1999, the district court appointed Carlyle and Jennifer Herndon, also
an attorney (collectively, counsel), to prepare and present Clay’s 28 U.S.C. § 2254
habeas corpus application. Although Clay’s application was ultimately unsuccessful,
counsel were paid under the CJA for their efforts on Clay’s behalf.
In May 2005, counsel moved the district court ex parte under 18 U.S.C.
§§ 3006A and 35593 to pre-approve payment for all “fees and expenses . . . relating
to the research, writing, investigation and presentation of a petition for executive
clemency” to Missouri’s governor. Counsel opined, “The failure to authorize payment
2
Because this appeal appears to raise first-impression issues and may be
important to the administration of the CJA in this circuit, I publish my order as a
written opinion. See, e.g., In re Gross, 704 F.2d 670, 671 (2d Cir. 1983) (Feinberg,
C.J.). Although some pleadings were filed ex parte and under seal below, the
underlying case has concluded and most of the background to this appeal may be
found in publicly available orders. See also 18 U.S.C. § 3006A(d)(4) (providing
generally for public disclosure).
3
Despite the resulting anachronisms, for clarity and convenience I only cite the
current, renumbered version of the United States Code. See Pub. L. No. 109-177, 120
Stat. 192, 231-232, §§ 221-222 (Mar. 9, 2006) (essentially transferring portions of 21
U.S.C. § 848 to 18 U.S.C. § 3599 without substantive change).
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of fees and expenses . . . would inflict substantial financial hardship on counsel and
their firms.” Counsel did not request a specific amount.
Relying on 18 U.S.C. § 3599 and Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir.
1993), the district court granted the ex parte motion in July 2005. The district court
cautioned counsel that it was “not issuing a blank check” and qualified its order in
four respects. The district court (1) set the rate of compensation at $125 per hour for
each attorney; (2) capped counsel’s combined fees at $3,500; (3) required prior
approval for “investigative, expert, or other services”; and (4) ordered that, because
the record in Clay’s case was exhaustive and complete, “the Court will only reimburse
counsel for their time and expenses . . . spent formulating arguments from the existing
record.”
Over five years later, in November 2010, counsel filed an ex parte motion to
reconsider. Counsel argued (1) their hourly rates should be increased to $178 per
hour; (2) they should be reimbursed for “clemency arguments outside the existing
record”; and (3) the $3,500 cap was “highly restrictive” and should be lifted. Counsel
provided the district court with a proposed budget, in which they sought $58,379 for
client contact, investigative work, advocacy before the governor, community
advocacy, and court advocacy.
In December 2010, the district court granted counsel’s requests for an increase
in their hourly rates and “for reimbursement to develop and formulate arguments
outside the existing record.” The district court granted in part and denied in part
counsel’s request to lift the $3,500 cap, increasing the total authorized expenditures
to $7,000. The district court reasoned that, although § 3599 authorized reimbursing
federally appointed counsel in state clemency proceedings, the district court retained
the discretion to decide what amount of fees were reasonable.
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The district court found counsel failed to justify their proposed $58,379 budget.
The district court observed:
Petitioner’s counsel fails to identify particular individuals or issues that
require exploration for the clemency proceedings, much less individuals
or issues that were not covered in prior proceedings. Factually, and by
way of example, the proposed budget vaguely seeks reimbursement for
communications with “family, friends, etc. of client,” but does not
identify who those individuals are or what new information they may
offer. The Motion also fails to adequately explain what legal issues may
need supplementation. Finally, the proposed budget contains tasks that
appear duplicative . . . .
Put simply, the Motion wholly lacks the necessary detail and
specificity to justify the significant fees and expenses requested. Given
these deficiencies, the Court cannot conclude that the amount requested
is reasonable.
....
Additionally, this lack of detail suggests that the vast majority of
Petitioner’s clemency arguments have already been uncovered and raised
in previous proceedings . . . . [T]his Court cannot condone the continual,
repeated outflow of taxpayer funds to relitigate matters which Petitioner
has already been given a full and fair opportunity to litigate. The
merry-go-round of litigation in capital cases like this one must eventually
stop.
(citations, footnote and internal marks omitted).
Approximately a week later, counsel filed a second motion to reconsider. After
endeavoring to “provide specific details as to the exact work [counsel] have done in
the case, and work that will be ‘reasonably necessary,’” counsel asked the district
court to lift its $7,000 cap and promise to fund their efforts at state clemency in full.
In the alternative, counsel asked the district court for leave to withdraw their
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representation of Clay, on the ground that “[c]ounsel are simply unable to provide the
diligent and competent representation to which Mr. Clay is entitled before the state
executes him without adequate resources.” Counsel opined,
there is no ethical requirement that they provide services pro bono and
pay expenses out of their own pockets, but in any event they are unable
to do so. They are both sole practitioners, and a significant amount of
their income is derived from court-appointed cases. They do not have
deep pockets that will support this case. Nor does Mr. Clay’s family
have resources adequate to this project; if they had they would have
contributed them long since.
....
Essentially, then, counsel are not being asked to provide their services
and expenses pro bono to Mr. Clay. Instead, they are being asked to
make an involuntary contribution to the United States Treasury. This is
not, and should not be, required.
The district court summarily denied counsel’s second motion to reconsider,
including the alternative motion to withdraw. Due to a technological error, counsel
did not receive a copy of the district court’s order in a timely manner.
On January 7, 2011, counsel moved the district court to stay Clay’s execution
“to secure proper funding to pursue clemency and related relief.” Counsel indicated
they had received “a generous donation of $10,000” but, “as [the district court] is well
aware, the donation does not even come close to covering the budget required to
mount an adequate clemency campaign for Mr. Clay.” Counsel represented, “It is
clear that the evidence is out there, yet most of it is beyond counsel’s reach at this
time” and “it is crucial that they be afforded this opportunity before the state kills an
innocent man.”
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The recent donation has allowed some investigation to begin, but
the money has been more than exhausted. Although far from complete,
the investigation is again stalled. Investigators do not have the resources
to take money out of their pockets that they will never see again. They
are not able to get in their cars; drive to locate and interview witnesses;
and to pay for meals, gas and hotel expenses while on the road. At least
3 witnesses have been identified who live out of state, and who could
have crucial information. There is no funding to purchase airline tickets
to interview these witnesses.
....
Counsel are solo practitioners, who do exclusively or near-exclusively
court appointed work. They are not exempt from the average person’s
need for a paycheck to keep a roof over their families’ heads, a car in the
garage, and food on the table. Yet counsel are being asked to go without
a paycheck for what will amount to more than two months worth of
work. At least one month of that time has been devoted almost
exclusively to Mr. Clay’s case, leaving counsel with absolutely no
income.
....
Counsel believe in Mr. Clay’s innocence and in his right to effective
clemency, and have no desire to withdraw from his case. These beliefs
are impossible to balance with the above-expressed personal concerns
for counsel’s livelihood. While the Court has not ruled on the motion to
withdraw, it is questionable at this time as to whether counsel are
functioning as counsel as contemplated by [Harbison v. Bell, 556 U.S.
___,129 S. Ct. 1481 (2009),] due to the absence of funding.
The district court promptly denied the motion to stay and provided counsel with
a copy of its order denying counsel’s second motion to reconsider. The district court
ordered counsel to “continue to represent Petitioner to the best of their ability.” The
district court encouraged counsel to “record their time and expenses incurred” and
“then submit their statement of fees and costs to the Court for review and approval.”
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Clay immediately appealed the denial of the motion to stay. On January 10,
2011, Clay also filed a largely redundant motion for stay of execution in the Eighth
Circuit Court of Appeals pending “provision of adequate funding for his counsel to
present clemency-related information to the Governor of Missouri.” Missouri resisted
Clay’s request for a stay on the same date, even though it lacked access to counsel’s
proposed budget, which remained under ex parte seal. Missouri argued, inter alia, that
counsel were derelict in waiting five years to file a motion to reconsider. The Eighth
Circuit promptly denied the motion.
On January 11, 2011, the Governor of Missouri granted Clay clemency and
commuted his death sentence to life in prison. The Eighth Circuit directed the parties
to show cause why Clay’s appeal should not be dismissed as moot. Neither party
responded to the Eighth Circuit’s show cause order, and the Eighth Circuit dismissed
Clay’s appeal. Carlyle later applied for and received CJA funds from the Eighth
Circuit for her work on the appeal.
On January 20, 2011, Carlyle submitted a final CJA voucher to the district court
seeking full reimbursement for “[t]he post-habeas phase of a capital case.” Carlyle
asked for $37,876.80, after deducting $12,096.40 in fees and expenses paid for by two
donors.
On April 14, 2011, the district court adhered to its prior orders and declined to
lift its $7,000 cap. Noting apparently no CJA funds had yet been disbursed, the
district court authorized payment of the full $7,000 to Carlyle. Despite counsel’s
repeated protestations of poverty and imminent financial ruin, at no time did counsel
ask the district court for emergency interim funding under the CJA.
Approximately six weeks later, on May 31, 2011, I received a four-page single
spaced letter from Carlyle. Carlyle asks me to “reconsider the decision of [the district
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court] to limit the payment of this voucher, including fees and expenses, to
$7,000.00.” Carlyle protests that the district court’s $7,000 cap is “unfair,”
“inequitable,” and “put [counsel] in the position of either violating [their] duty to Mr.
Clay or risking performing uncompensated work.” Attaching a series of exhibits,
Carlyle explains some of the work she performed and asks me to review the record in
the appeal. Carlyle “concede[s] that it would have been prudent to seek review of this
order long before” but says attention to other matters and Missouri’s delay in setting
Clay’s execution date explains her tardiness. Carlyle asks that I award her
“reasonable compensation.”
II. DISCUSSION
Section 3599 authorizes federally appointed counsel to represent indigent death
row inmates in state clemency proceedings. See Harbison, 556 U.S. at ___, 129 S. Ct.
at 1485; cf. Hill, 992 F.2d at 803. However—and this is the paramount consideration
here—Carlyle does not cite, and I cannot find, any legal authority granting a chief
circuit judge jurisdiction to review a district court’s reduction of a CJA voucher.4
The CJA generally permits counsel to submit ex parte applications to the
district court for attorneys’ fees, necessary expert services, and other services. See
18 U.S.C. §§ 3006A(d), (e). If counsel seeks funding in excess of certain
predetermined limits, counsel must make a formal request and convince the district
judge those limits are unreasonable and a waiver is necessary. See id. If the district
court agrees, the district court certifies the request to the chief judge of the circuit for
approval. See id.
4
The only authorities Carlyle mentions in her letter are the American Bar
Association’s Guidelines for Appointment and Performance of Counsel in Death
Penalty Cases and the Missouri Rules of Professional Conduct. Carlyle says the ABA
Guidelines “informed [her] ethical responsibilities” and her “work . . . was undertaken
with [the] responsibility [set forth in the Missouri Rules of Professional Conduct] in
mind.”
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The CJA is otherwise silent regarding the chief judge’s role in the review of
CJA vouchers. It would appear, then, that my review of a CJA voucher is limited to
the approval or disapproval of certified requests for payments in excess of the
statutory limits. Because the CJA provides no mechanism whatsoever for the review
of reduced or denied CJA vouchers below the statutory limits, the fixing of any CJA
award within the predetermined limits is exclusively within the discretion of the
appointing authority.
Occasionally, court-appointed attorneys have attempted to appeal a district
court’s denial or reduction of a CJA voucher. As far as I am aware, every circuit court
of appeals and chief judge to consider the issue has held the CJA does not confer any
appellate jurisdiction to review such an appeal and thus the district court’s denial or
reduction is unreviewable. See, e.g., United States v. Johnson, 391 F.3d 946, 948 (8th
Cir. 2004); Rhinehart v. Eighth Circuit Court of Appeals, 218 F. App’x 547, 548 (8th
Cir. 2007) (unpub. per curiam). See also United States v. French, 556 F.3d 1091,
1093 (10th Cir. 2009) (observing “[e]very circuit court of appeals to consider this
jurisdictional question has held that CJA fee compensation determinations made by
the district court are not appealable” and holding “CJA fee determinations are not
appealable orders”) (citing United States v. Stone, 53 F.3d 141, 143 (6th Cir. 1995);
Shearin v. United States, 992 F.2d 1195, 1196 (Fed. Cir. 1993); Landano v. Rafferty,
859 F.2d 301, 302 (3d Cir. 1988); United States v. Rodriguez, 833 F.2d 1536, 1537-38
(11th Cir. 1987); In re Baker, 693 F.2d 925, 927 (9th Cir. 1982); and United States v.
Smith, 633 F.2d 739, 742 (7th Cir. 1980)); Gross, 704 F.2d at 671-73.5 I likewise
5
In United States v. Turner, 584 F.2d 1389 (8th Cir. 1978) (per curiam), a panel
of the Eighth Circuit Court of Appeals held a district court did not abuse its discretion
in limiting a CJA award to $250.00. But Turner did not examine the latent issue of
subject matter jurisdiction and does not address the jurisdictional issue presented
here, namely, whether a chief judge possesses any jurisdiction over the denial or
reduction of a CJA voucher. A panel may indirectly determine whether a denial or
reduction of a CJA voucher is wrong when the denial or reduction warrants reversal
because the denial or reduction prejudiced the defendant’s defense. Cf. United States
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conclude the CJA does not confer appellate jurisdiction over Carlyle’s appeal. As
others have recognized, the non-adversarial nature of the CJA voucher process, which
is wholly ex parte, evidences an administrative act not a judicial decision. See French,
556 F.3d at 1093 (citing Rodriguez, 833 F.2d at 1537-38 and Baker, 693 F.2d at 926-
27). As the Supreme Court recently recognized in another context, “the determination
of fees ‘should not result in a second major litigation.’ . . . We can hardly think of a
sphere of judicial decisionmaking in which appellate micromanagement has less to
recommend it.” Fox v. Vice, 563 U.S. ___, ___, 131 S. Ct. 2205, 2216 (2011)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
Carlyle’s contributions in Clay’s service are important and appreciated. But it
must be remembered that CJA service is first a professional responsibility, and no
lawyer is entitled to full compensation for services for the public good.
[I]t is . . . clear that Congress did not intend to provide full compensation
and that it contemplated appointments of private counsel to supplement
the efforts of professional defender organizations. Thus, although the
increased maximum rates envisioned greater participation by the private
bar, the [CJA] also presupposes recognition by private attorneys of their
professional obligation to render services for those unable to pay. The
[CJA] is in no way an attorney’s full-employment act. Congress merely
intended that those attorneys who devote themselves to the time-honored
tradition of service should not go entirely without compensation.
The history of the American bar is replete with instances of pro
bono service by its members. That service has not been undertaken with
regard to monetary enrichment, but has been motivated by the higher
objective of obtaining equal justice for all, a goal which enriches and
v. Bledsoe, 674 F.2d 647, 668 (8th Cir. 1982). A circuit court of appeals in limited
circumstances may exercise its supervisory powers if the district court completely
neglects its duty to process a CJA voucher, so long as the amount of the voucher is not
in question. See French, 556 F.3d at 1093-94 (discussing United States v. Davis, 953
F.2d 1482, 1497 (10th Cir. 1992)).
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strengthens the commonweal. If our holding today discourages those
who look upon the [CJA] as a profit center, so be it. We have not yet
reached the day when other members of the bar will not step forward to
take their place, dedicated to the principles of equal justice and
competent representation for the less fortunate in our society.
Smith, 633 F.2d at 741 (citations omitted). I agree.
There is no injustice in Carlyle failing to receive appellate review of the district
judge’s administrative refusal to remunerate her fully for her work on Clay’s behalf
in state clemency proceedings. See United States v. Smith, 76 F. Supp. 2d 767, 773
(S.D. Tex. 1999) (“[T]he court takes seriously its inherent obligation to safeguard the
limited funds, supplied by American taxpayers, which are available for attorney
remibursement under the CJA. The Court also expects counsel, when accepting their
appointments, to recognize their time honored public service obligations as Officers
of the Court.”). Carlyle’s efforts on Clay’s behalf are commendable, and I thank her
for her service.
III. CONCLUSION
This matter is dismissed for lack of subject matter jurisdiction.
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