UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-10573
JACK WADE CLARK,
Petitioner,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent.
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GARY A. TAYLOR,
Appellant.
Appeal from the United States District Court
For the Northern District of Texas, Lubbock
January 2, 2002
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
The district court granted Gary Taylor’s motion to appoint him
to represent Jack Wade Clark, a Texas prisoner who had been
convicted of capital murder in 1991 and sentenced to death. With
Taylor’s assistance, Clark filed a 28 U.S.C. § 2254 petition, which
was denied by the district court. Both the district court and this
court denied Clark a certificate of appealability to appeal the
district court’s final judgment. Clark’s petition to the Supreme
Court for a writ of certiorari was also denied. Clark v. Johnson,
531 U.S. 831 (2000). The State of Texas executed Clark on January
9, 2001.
Following Clark’s execution, Taylor submitted a CJA1 voucher
to the district court requesting compensation and reimbursement of
expenses incurred in connection with a state clemency proceeding
brought on Clark’s behalf. The district court denied the voucher,
adopting the reasoning set forth in Chambers v. Johnson, 133 F.
Supp. 2d 931 (E.D. Tex. 2001), holding that 21 U.S.C. § 848(q)(8)
(relating to the payment of court appointed counsel in death
penalty cases) did not authorize compensation for representation in
state clemency proceedings.
Taylor filed a timely notice of appeal to this Court.
This Court ordered the parties to address whether a circuit
court has appellate jurisdiction to review the district court’s
order denying reimbursement for activities by appointed counsel
relating to state clemency matters. The State has informed the
Court that it does not have any interest or role in this appeal and
therefore does not intend to file a brief.
1
Criminal Justice Act (CJA).
2
Appellate Jurisdiction
This Court must consider, sua sponte if necessary, whether
appellate jurisdiction exists. In re Kaiser Aluminum and Chemical
Co., 214 F.3d 586, 589 (5th Cir. 2000), cert. denied, 121 S. Ct.
1354 (2001). As a court of limited jurisdiction, this Court has
authority to hear appeals only from “final decisions” under 28
U.S.C. § 1291, interlocutory decisions under 28 U.S.C. § 1292, non-
final judgments certified as final under Federal Rule of Civil
Procedure 54(b), or some other non-final order or judgment to which
an exception applies. Briargrove Shopping Ctr. Joint Venture v.
Pilgrim Enter., Inc., 170 F.3d 536, 538 (5th Cir. 1999).
In general, a district court’s order is an appealable final
decision if it “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945)). In addition, the
jurisprudential exception known as the collateral-order doctrine
permits an appeal of a narrow group of interlocutory orders if the
district court’s ruling conclusively determines the disputed
question, resolves an important issue that is completely separate
from the merits, and cannot effectively be reviewed on appeal from
a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949); United States v. Brown, 218 F.3d 415, 420 (5th
Cir. 2000), cert. denied, 531 U.S. 1111 (2001).
3
At issue here is the district court’s ruling that counsel was
not entitled to compensation and reimbursement under § 848(q) for
expenses incurred in connection with Clark’s state clemency
proceeding. Whether the court has appellate jurisdiction to
consider an appeal from the district court’s order denying
compensation under § 848(q)(4)(B) is a question of first impression
in this Court.
Taylor argues that the district court’s order is reviewable as
either a final order or as an appealable collateral order. We
agree. Attorney fee decisions made at or after a final ruling on
the merits are ordinarily appealable. See Companioni v. Barr, 962
F.2d 461, 463 (5th Cir. 1992); Shipes v. Trinity Indus., Inc., 883
F.2d 339, 344 (5th Cir. 1989) (discussing fees in an EEOC case);
Dardar v. Lafourche Realty Co., 849 F.2d 955, 959 (5th Cir. 1988)
(discussing fees in an APA case); Ruiz v. Estelle, 609 F.2d 118,
119 (5th Cir. 1980) (discussing fees under the Civil Rights Act, 42
U.S.C. § 1988). Taylor concedes that some courts have ruled that
a district court’s decision to reduce compensation under the CJA
are non-appealable administrative decisions. Taylor maintains,
however, that this case concerns an interpretation of a federal
statute by a federal district judge, not an administrative decision
about the appropriate amount of fees for an otherwise authorized
activity.
4
On the other hand, the award of fees under § 848(q) is not
dependent upon the outcome of the case. § 848(q)(10). The
opposing party (the United States or State) does not receive notice
that a fee determination will be made by the judge, and no
adversary hearing is required. Nor does § 848(q) expressly provide
for appellate review.
The instant order fully and finally disposes of Taylor’s
request for reimbursement, an issue that is separate from the
merits of the federal habeas corpus proceeding. The district court
necessarily interpreted the meaning of “proceedings for executive
or other clemency” under § 848(q)(8) to exclude state clemency
proceedings. Such a decision is qualitatively different from
approving or disapproving the amount of expenses reasonably and
necessarily incurred by counsel as it definitively determines
whether such services are compensable under the Act as a matter of
law. We conclude therefore that under either theory this Court has
appellate jurisdiction as to the district court’s order.
Clemency Proceedings
Taylor argues that the plain language of § 848(q) requires
that counsel pursue state clemency proceedings and therefore that
the federal court must compensate counsel for this representation.
This Court reviews a district court’s interpretation of a
federal statute de novo. United States v. Rasco, 123 F.3d 222, 226
(5th Cir. 1997).
5
Section 848(q)(4)(B) authorizes the appointment of counsel in
any post conviction proceeding under 28 U.S.C. § 2254, seeking to
vacate or set aside a death sentence, for any indigent defendant.
§ 848(q)(4)(B). “[E]ach attorney so appointed shall represent the
defendant through every subsequent stage of available judicial
proceedings, . . . and all available post-conviction process,
together with applications for stays of execution and other
appropriate motions and procedures, and shall also represent the
defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the defendant.”
§ 848(q)(8). Compensation “shall be paid to attorneys appointed
under this subsection.” § 848(q)(10)(A). Subject to certain
amount limitations, fees and expenses paid for reasonably
necessary, authorized services are also reimbursable.
§ 848(q)(10)(B).
Whether the phrase “proceedings for executive or other
clemency as may be available” includes state clemency proceedings
for which counsel may be compensated is a question of first
impression in this Court.
The Eleventh Circuit has held that an inmate under death
sentence who has not exhausted all available state remedies is not
proceeding under § 2254 so as to be entitled to appointment of
attorney under § 848(q). In re Lindsey, 875 F.2d 1502, 1506-07
(11th Cir. 1989) (denying mandamus to compel the appointment of
6
counsel and a psychiatrist). The court explained that “the terms
‘subsequent stage[s] of available judicial proceedings’ and
‘competency proceedings and proceedings for executive or other
clemency,’ as used in § 848(q)(8), do not encompass within their
meanings any proceedings convened under the authority of a State.”
Id. at 1506.
This Court favorably cited Lindsey in Sterling v. Scott, 57
F.3d 451 (5th Cir. 1995), in which this Court held that an indigent
state death row petitioner had no right to appointed and paid
counsel under § 848(q)(4)(B) for the purpose of exhausting his
state post-conviction claims. Id. at 458. The court concluded in
Sterling that § 848(q)(8), which provides for the continued
representation by the appointed attorney throughout “every
subsequent stage of available judicial proceedings,” did not allow
counsel to continue his representation for the purpose of
exhausting state remedies in state court. Id. at 457. The court
read § 848(q)(8) in light of § 848(q)(4)(B), which provides that
the right to counsel applies only in connection with federal
proceedings. Id. The court specifically agreed with Lindsey “that
allowing the defendant to obtain federally appointed counsel for
use in state postconviction habeas proceedings would have the
effect of supplanting state-court systems for the appointment of
counsel in collateral review cases.” Id. at 458 (internal
quotation and citation omitted).
7
In Chambers v. Johnson, the Eastern District of Texas followed
the analysis in Sterling and Lindsey in denying counsel’s claim for
compensation and reimbursement for representing the petitioner in
his state clemency proceedings. Chambers, 133 F. Supp. 2d at 935-
36. The district court below relied upon Chambers in denying
counsel’s claim for compensation and reimbursement.
Taylor argues that Chambers misapplies Sterling because
clemency proceedings are fundamentally different from state post-
conviction proceedings raising unexhausted claims. Taylor notes
that clemency proceedings are not “judicial proceedings” and thus
“wholly different from state judicial post-conviction proceedings.”
As Taylor correctly argues Sterling does not address the
precise question presented here, i.e., whether representation in
state clemency proceedings is required and compensable. The
Sterling court’s discussion of § 848(q), and its reasons for not
reading § 848(q) broadly, are nevertheless instructive. The court
has continued to construe § 848(q)(4)(B) narrowly. See Cantu-Tzin
v. Johnson, 162 F.3d 295, 298-99 (5th Cir. 1998) (denying
petitioner’s request for the appointment of counsel under §
848(q)(4)(B) because the § 2254 petition would have been undeniably
time-barred). We conclude therefore that the phrase “proceeding
for executive or other clemency as may be available to the
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defendants” as it appears in § 848(q)(8) does not apply to state
clemency proceedings. Accordingly, we affirm the Order of the
district court.
9