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Contents
Part A. Eligibility for Representation Under
the Act
Part B. Appointment of Counsel
Part C. Compensation and Expenses of Appointed
Counsel
CHAPTER II. APPOINTMENT AND PAYMENT OF COUNSEL
Part A. Eligibility for Representation Under
the Act
2.01 District Plans
A. Each district court, with the approval of the judicial council,
is required to have a plan for furnishing representation for any person
financially unable to obtain adequate representation. A copy of a "Model
Criminal Justice Act Plan" is included as Appendix G.
(1) Representation shall be provided for any financially
eligible person who:
(i) is charged with a felony or with a Class A misdemeanor;
(ii) is a juvenile alleged to have committed an act of juvenile
delinquency as defined in section 5031 of title 18, U.S.C. (see
18 U.S.C. § 5034 with regard to appointment of counsel; for appointment
of a guardian ad litem, see paragraph 3.14);
(iii) is charged with a violation of probation;
(iv) is under arrest, when such representation is required by
law;
(v) is entitled to appointment of counsel in parole proceedings;
[The reference to representation at parole proceedings was deleted
from the Criminal Justice Act in accordance with the November 1,
1987 repeal of chapter 311 of title 18 United States Code. However,
the savings provisions of the Sentencing Reform Act of 1984, as
amended by the Parole Commission Phaseout Act of 1996, state that
existing law pertaining to parole will remain effective for eighteen
years after November 1, 1987, with regard to persons specified
in the savings provisions, and certain laws relating to parole will
remain effective until the expiration of the sentence received by
other persons specified in the savings provisions. This includes
laws governing the right to counsel in parole proceedings.];
(vi) is charged with a violation of supervised release or faces
modification, reduction, or enlargement of a condition, or extension
or revocation of a term of supervised release (see, e.g., Criminal
Monetary Penalties: A Guide to the Probation Officer's
Role, Monograph 114, Chap. VI);
(vii) is subject to a mental condition hearing under chapter 313
of title 18, U.S.C. (see paragraphs 2.13 F and 2.22 B(2)(vi)(f),
and Appendix H);
(viii) is in custody as a material witness;
(ix) is entitled to appointment of counsel under the sixth amendment
to the Constitution, or faces loss of liberty in a case and federal
law requires the appointment of counsel. This provision obviates
the need for future amendments to the Criminal Justice Act each
time the right to counsel may be extended to new situations by judicial
decision or federal statutes. It also eliminates any doubt as to
the application of the Act with respect to appointment of counsel
for patients pursuant to title III of the Narcotic Addict Rehabilitation
Act of 1966 (Ch. 2, title 42, U.S.C.) or for juveniles pursuant
to the Federal Juvenile Delinquency Act (Ch. 403, title 18,
U.S.C.);
(x) is seeking to set aside or vacate a death sentence in proceedings
under section 2254 or 2255 of title 28, U.S.C.; and
(xi) is entitled to appointment of counsel in connection with
prisoner transfer proceedings under section 4109 of title 18, U.S.C.
(2) Whenever the United States magistrate judge or the court determines
that the interests of justice so require, representation may
be provided for any financially eligible person who:
(i) is charged with a petty offense (Class B or C misdemeanor,
or an infraction) for which a sentence to confinement is authorized;
or
(ii) is seeking relief under section 2241, 2254, or 2255 of title
28 (but see paragraph 2.01 A(1)(x) regarding the mandatory
appointment of counsel in death penalty habeas corpus cases and
paragraph 2.14 regarding the requirement for appointment of counsel
for an evidentiary hearing).
B. Each plan shall include a provision for private attorneys. The
plan may include, in addition to a provision for private attorneys in
a substantial proportion of cases, either of the following or both:
(l) attorneys furnished by a bar association or a legal aid agency;
or
(2) attorneys furnished by a defender organization established in
accordance with the provisions of subsection (g) of the Act.
C. Each plan should contain a provision to the effect:
"If at any time after appointment, counsel obtains information that
a client is financially able to make payment, in whole or in part,
for legal or other services in connection with his or her representation,
and the source of the attorney's information is not protected as a
privileged communication, counsel shall advise the court."
D. Composition and Management of the Panel of Private Attorneys
(CJA Panel). The CJA Panel must be designated or approved by
the court. The membership of the panel should be large enough to provide
a sufficient number of experienced attorneys to handle the CJA caseload,
yet small enough so that panel members receive an adequate number of
appointments to maintain their proficiency in criminal defense work
and thereby provide a high quality of representation. Members should
serve at the pleasure of the court.
Subsection (b) of the Act provides, in part, that:
Counsel furnishing representation under the plan shall be selected
from a panel of attorneys designated or approved by the court, or
from a bar association, legal aid agency, or defender organization
furnishing representation pursuant to the plan.
However, when the district judge presiding over the case, or the
chief judge if a district judge has not yet been assigned to the case,
determines that the appointment of an attorney, who is not a member
of the CJA panel, is in the interest of justice, judicial economy
or continuity of representation, or there is some other compelling
circumstance warranting his or her appointment, the attorney may be
admitted to the CJA panel pro hac vice and appointed to represent
the CJA defendant. Consideration for preserving the integrity of the
panel selection process suggests that such appointments should be
made only in exceptional circumstances. Further, the attorney, who
may or may not maintain an office in the district, should possess
such qualities as would qualify him or her for admission to the district's
CJA panel in the ordinary course of panel selection.
Administration and management of the CJA Panel should be centralized
in one organizational element (such as the Clerk's Office or, where
appropriate, the Federal Defender Organization) to ensure that counsel
is appointed as expeditiously as possible, appointments are equitably
distributed, and information on availability of counsel is maintained.
Appointments should be made in a manner which results in both a
balanced distribution of appointments and compensation among members
of the CJA Panel, and quality representation for each CJA defendant.
These objectives can be accomplished by making appointments on a rotational
basis, subject to the court's discretion to make exceptions due to
the nature and complexity of the case, an attorney's experience, and
geographical considerations.
A copy of a "Model Plan for the Composition, Administration, and
Management of the Panel of Private Attorneys under the Criminal Justice
Act" is included as an appendix to the "Model Criminal Justice Act
Plan" in Appendix G, at page G-12.
E. Cases or proceedings which are not covered by or compensable under
the Act include the following:
(1) Petty offenses (Class B or C misdemeanors or infractions), except
where confinement is authorized by statute and the judge or United
States magistrate judge determines that appointment of counsel is
required in the interest of justice;
(2) Corporate defendant cases;
(3) Prisoners bringing civil rights actions under 42 U.S.C. § 1983.
Care should be taken to ensure that a prisoner is not denied the appointment
of counsel due to the mislabeling of his action as "civil rights"
when the proceedings could also be considered as seeking relief under
28 U.S.C. § 2254;
(4) Civil actions to protect federal jurors' employment. However,
Congress has annually included statutory language in the appropriation
for the federal judiciary's Defender Services account to authorize
"the compensation of attorneys appointed to represent jurors in civil
actions for the protection of their employment, as authorized by 28
U.S.C. 1875(d)." The court shall appoint counsel under the standard
set forth in 28 U.S.C. § 1875(d)(1), which does not require a finding
of financial eligibility. The court shall appoint a private attorney,
who may be a member of the CJA panel and should have employment law
experience; a federal defender should not be appointed. The court
shall utilize the CJA Form 20 for the appointment and pay counsel
"to the extent provided by [the Criminal Justice Act]", 28 U.S.C.
§ 1875(d)(1), and the CJA Guidelines. The court may, as authorized
by 28 U.S.C. § 1875(d)(2), order a defendant employer to pay the fees
and expenses of counsel appointed under 28 U.S.C. § 1875(d)(1); in
such event, the court should follow the reimbursement procedures set
forth under section 2.22E of the CJA Guidelines;
(5) Administrative deportation proceedings before the Immigration
and Naturalization Service.
F. Other cases or proceedings which may be covered or compensable
under the Act include, but are not limited to the following (see also
paragraph 2.22 B(2)):
(1) Counsel may be appointed under the Act for a person charged
with civil or criminal contempt who faces loss of liberty.
(2) Upon application of a witness before a grand jury, a court,
the Congress, or a federal agency or commission which has the power
to compel testimony, counsel may be appointed where there is reason
to believe, either prior to or during testimony, that the witness
could be subject to a criminal prosecution, a civil or criminal contempt
proceeding, or face loss of liberty.
(3) Counsel may be appointed for financially eligible persons proposed
by the U.S. Attorney for processing under a "pretrial diversion" program.
(4) Counsel may be appointed for persons held for international
extradition under chapter 209, title l8, United States Code.
(5) Representation may be furnished for financially eligible persons
in "ancillary matters appropriate to the proceedings" pursuant to
subsection (c) of the Act.
In determining whether a matter is ancillary to the proceedings,
the court should consider whether the matter, or the issues of law
or fact in the matter, arose from, or are the same as or closely related
to, the facts and circumstances surrounding the principal criminal
charge.
In determining whether representation in an ancillary matter is
appropriate to the proceedings, the court should consider whether
such representation is reasonably necessary to accomplish, inter
alia, one of the following objectives:
(i) to protect a Constitutional right;
(ii) to contribute in some significant way to the defense of the
principal criminal charge;
(iii) to aid in preparation for the trial or disposition of the
principal criminal charge;
(iv) to enforce the terms of a plea agreement in the principal
criminal charge;
(v) to preserve the claim of the CJA client to
an interest in real or personal property subject to a civil forfeiture
proceeding pursuant to 2l U.S.C. §88l, l9 U.S.C. §l602 or similar
statutes, which property, if recovered by the CJA client, may be
considered for reimbursement under subsection (f) of the Act and
paragraph 2.04 of these Guidelines; or
(vi) to effectuate the return of real or personal property belonging
to the CJA client which may be subject to a motion for return of
property pursuant to Fed. R. Crim. P. 4l(e), which property, if
recovered by the CJA client, may be considered for reimbursement
under subsection (f) of the Act and paragraph 2.04 of these Guidelines.
The scope of representation in the ancillary matter should extend
only to the part of the ancillary matter that relates to the principal
criminal charge and to the correlative objective sought
to be achieved in providing the representation (e.g., a CJA defendant
in a criminal stock fraud case should be represented by CJA counsel
at the defendant's deposition in a parallel civil fraud action for
the limited purpose of advising him concerning his Fifth Amendment
rights.)
Representation in an ancillary matter shall be compensable as part
of the representation in the principal matter for which counsel has
been appointed and shall not be considered a separate appointment
for which a separate compensation maximum would be applicable under
paragraph 2.22 B of these Guidelines. A private panel
attorney appointed under the Act may obtain, through an ex parte
application to the court, a preliminary determination that the representation
to be provided in an ancillary matter is appropriate to the principal
criminal proceeding and compensable under subsection (c) of the Act
and this guideline. However, failure to obtain such a preliminary
determination shall not bar the court from approving compensation
for representation in an ancillary matter provided that the services
and compensation related thereto are justified in a memorandum submitted
by the attorney to the court at the conclusion of the principal criminal
matter and the presiding judicial officer finds that such representation
was appropriate.
(6) Under 18 U.S.C. § 983(b)(1), if a person with standing to contest
the forfeiture of property in a judicial civil forfeiture proceeding
under a civil forfeiture statute is financially unable to obtain representation
by counsel, and the person is represented by counsel appointed under
section 3006A of title 18, United States Code, in connection with
a related criminal case, the court may authorize counsel to represent
that person with respect to the claim.
In determining whether to authorize counsel to represent a person
in a judicial civil forfeiture proceeding under a civil forfeiture
statute, the court shall take into account such factors as:
(i) the person's standing to contest the forfeiture; and
(ii) whether the claim appears to be made in good faith.
2.02 Criminal Justice Act Forms.
The Judicial Conference of the United States, at its meeting in January
1965, approved the recommendation of its Committee to Implement the Criminal
Justice Act of 1964, that every district incorporate in its plan a requirement
that the standard forms, approved by the Conference, be used. (Copies
of the pertinent forms are included in Appendix A.)
2.03 Fact-finding
A. A person financially eligible for representation should be provided
with counsel as soon as feasible after being taken into custody, when
first appearing before a federal judge or United States magistrate judge,
when formally charged, or when otherwise entitled to counsel under the
Act, whichever occurs earliest. The determination of eligibility for
representation under the Criminal Justice Act is a judicial function
to be performed by a federal judge or United States magistrate judge
after making appropriate inquiries concerning the person's financial
condition.
B. Unless it will result in undue delay, fact-finding concerning the
person's eligibility for appointment of counsel should be completed
prior to the person's first appearance in court. Other officers or employees
of the court (i.e., clerk, deputy clerk, or Pretrial Services Officer)
may be designated by the court to obtain or verify the facts upon which
such determination is to be made. Relevant information bearing on the
person's financial eligibility should be reflected on CJA Form 23 and
the form shall be completed and executed before a judicial officer or
employee. Employees of law enforcement agencies or United States attorney
offices should not participate in the completion of the CJA Form 23
or seek to obtain information from a person requesting the appointment
of counsel concerning his or her eligibility.
C. The person seeking appointment of counsel has the responsibility
of providing the court with sufficient and accurate information upon
which the court can make an eligibility determination. The prosecution
and other interested entities may present to the court information concerning
the person's eligibility, but the judicial inquiry into financial eligibility
shall not be utilized as a forum to discover whether the person has
assets subject to forfeiture, or the ability to pay a fine, make restitution,
or compensate another person pursuant to the Victim/Witness Protection
Act or other purposes not related to the appointment of counsel. Such
determinations, if appropriate, shall be made at other stages of the
proceedings in which the person seeking counsel is a party.
2.04 Standards for Eligibility. A
person is "financially unable to obtain counsel" within the meaning of
subsection (b) of the Act if his net financial resources and income are
insufficient to enable him to obtain qualified counsel. In determining
whether such insufficiency exists, consideration should be given to (a)
the cost of providing the person and his dependents with the necessities
of life, and (b) the cost of the defendant's bail bond if financial conditions
are imposed, or the amount of the case deposit defendant is required to
make to secure his release on bond.
Any doubts as to a person's eligibility should be resolved in his favor;
erroneous determinations of eligibility may be corrected at a later time.
At the time of determining eligibility, the judge or United States magistrate
judge should inform the person of the penalties for making a false statement,
and of his obligation to inform the court and his attorney of any change
in his financial status. Prior to sentencing, the court should consider
pertinent information contained in the presentence report, the court's
intention with respect to fines and restitution, and all other available
data bearing on the individual's financial condition in order to make
a final determination concerning whether the individual then has funds
available to pay for some or all of the costs of representation. At the
time of sentencing, in appropriate circumstances, it should order the
individual to reimburse the CJA appropriation for such costs. (See paragraph
2.22 F). Future earnings should not be considered or subject to a reimbursement
order, however, other income or after-acquired assets which will be received
within one hundred eighty days after the date of the court's reimbursement
order may be available as a source of reimbursement.
2.05 Partial Eligibility. If a person's
net financial resources and income anticipated prior to trial are in excess
of the amount needed to provide him and his dependents with the necessities
of life and to provide the defendant's release on bond, but are insufficient
to pay fully for retained counsel, the judicial officer should find the
person eligible for the appointment of counsel under the Act and should
direct him to pay the available excess funds to the Clerk of the Court
at the time of such appointment or from time to time thereafter. Such
funds shall be held subject to the provisions of subsection (f). The judicial
officer may increase or decrease the amount of such payments, and impose
such other conditions from time to time as may be appropriate. With respect
to the disposition of such funds, refer to paragraph 2.22 F of these Guidelines.
2.06 Family Resources. The initial
determination of eligibility should be made without regard to the financial
ability of the person's family unless his family indicates willingness
and financial ability to retain counsel promptly. At or following the
appointment of counsel, the judicial officer may inquire into the financial
situation of the person's spouse (or parents, if he is a juvenile) and
if such spouse or parents indicate their willingness to pay all or part
of the costs of counsel, the judicial officer may direct deposit or reimbursement.
Part B. Appointment of Counsel
2.10 Appointment of Counsel to Represent More
Than One Individual in a Particular Case. Unless good cause is
shown or in the absence of a waiver on the record by the defendants, in
a criminal prosecution involving more than one defendant, or where separate
charges arising out of the same or similar transactions are concurrently
pending against two or more defendants, separate counsel should normally
be appointed for each defendant. If an attorney is appointed to represent
more than one person, a separate order of appointment shall be entered
with respect to each person. An attorney who represents joint defendants
may be compensated for his services up to the statutory maximum for each
person represented, unless the case involves extended or complex representation
(see paragraph 2.24 of these Guidelines).
2.11 Compensation of Co-counsel.
A. Without appointment. Unless appointed in accordance
with paragraphs 2.11 B or 6.01 A, co-counsel or associate attorneys
may not be compensated under the Act. However, an appointed counsel
may claim compensation for services furnished by a partner or associate
or, with prior authorization by the court, counsel who is not a partner
or associate, within the maximum compensation allowed by the Act, separately
identifying the provider of each service.
B. With appointment. In an extremely difficult case
where the court finds it in the interest of justice to appoint an additional
attorney, each attorney is eligible to receive the maximum compensation
allowable under the Act. The finding of the court that the appointment
of an additional attorney in a difficult case was necessary and in the
interest of justice shall appear on the Order of Appointment. (See paragraph
6.01 A for appointment of more than one attorney in capital cases.)
2.12 Continuity of Representation.
If the attorney appointed by the United States magistrate judge is to
continue to represent the defendant in the district court, no additional
appointment by the district court should be made, except on appeal from
a judgment rendered by the United States magistrate judge in a misdemeanor
case.
An order extending Appointment on Appeal (CJA 20) should be executed
for each appellant for whom counsel was appointed by a United States district
judge or magistrate judge for representation at the trial level. In a
federal capital prosecution, or a proceeding pursuant to 28 U.S.C. § 2254
or 2255 challenging a death sentence, the appointment should be made on
a CJA 30.
Absent special circumstances, whenever a case is transferred to another
district, such as under Rules 20, 2l, and 40, Federal Rules of Criminal
Procedure, appointment of counsel should be made in the transferee district.
2.13 Other Appointments. A new appointment
on CJA Form 20 should be made for each person represented in the following
proceedings:
A. New trial after motion, mistrial, reversal, or remand on appeal;
B. Probation revocation proceedings;
C. Appeal, including interlocutory appeals;
D. Bail appeals to a Court of Appeals;
E. Extraordinary writs;
F. Mental condition hearings pursuant to section 4243 (Hospitalization
of a Person Found Not Guilty only by Reason of Insanity), 4245 (Hospitalization
of an Imprisoned Person Suffering From Mental Disease or Defect), and
4246 (Hospitalization of a Person Due for Release but Suffering From
Mental Disease or Defect) of title 18, United States Code. (See also
paragraph 2.22 B(2)(ix)(e) and Appendix H infra.)
2.14 Appointment of Counsel in Habeas Corpus
and Proceedings under Section 2255, Title 28, United States Code.
While the Rules for sections 2254 and 2255 of title 28, United States
Code, mention the appointment of counsel only with regard to discovery
and evidentiary hearings, the Criminal Justice Act, subsection (a)(2)(B),
permits discretionary appointment at any stage of the proceedings, in
the interest of justice. (See paragraph 2.01 A(2)(ii)). In addition, 21
U.S.C. §848(q)(4) requires the appointment of one or
more attorneys in death penalty federal habeas corpus cases. (See paragraph 6.01 A.)
2.15 Forms for the Appointment of Counsel.
Forms for the Appointment of Counsel, together with instructions for the
execution and distribution thereof, are included in Appendix A.
2.16 Waiver of Counsel. A waiver
of assigned counsel by a defendant should be in writing. If the defendant
refuses to sign the waiver, the judge or United States magistrate judge
should certify thereto. No standard form has been prescribed for this
purpose. If an appointment of counsel has been made previously, the CJA
appointment form and the waiver should be forwarded to the Administrative
Office.
2.17 Standby Counsel. Criminal defendants
have both a constitutional and statutory right to self-representation
in federal court. [See Faretta v. California, 422 U.S. 806 (l975);
28 U.S.C. §l654]. In some cases, however, the judge or United States magistrate
judge may find it necessary to appoint "standby" counsel to be available
to assist a pro se defendant in his or her defense and also to protect
the integrity and ensure the continuity of the judicial proceedings. [See
McKaskle v. Wiggins, 465 U.S. l68 (l984); Faretta, supra].
The CJA, however, provides that "[u]nless the (financially eligible) person
waives representation by counsel... [the court] shall appoint counsel
to represent him." While the court has inherent authority
to appoint standby counsel, such appointments may not be made and counsel
may not be compensated under the CJA unless the defendant qualifies
for appointed counsel and representation is actually rendered by counsel.
Accordingly, if a financially eligible pro se defendant agrees
to be represented, at least in part, by standby counsel, compensation
may be provided under the CJA. Similarly, if at any time during the course
of the proceedings the services of standby counsel are accepted by a financially
eligible pro se defendant, a nunc pro tunc CJA appointment
order should be effected and counsel may be compensated under the CJA.
On the other hand, in circumstances in which appointment is made under
the court's inherent authority, and counsel serves exclusively on behalf
of the court to protect the integrity and continuity of the proceedings,
and does not represent the defendant, any compensation to be paid counsel
shall be in the capacity of an "expert or consultant" pursuant to 5 U.S.C.
§3l09. Accordingly, an appointment pursuant to this section may be made
regardless of whether the defendant is financially able to obtain adequate
representation. In such cases, compensation will be determined by the
judicial officer in accordance with CJA hourly rates and case compensation
maximums. The Office of Defender Services of the Administrative Office
should be consulted regarding appointment and payment procedures. If,
during the course of the proceedings, a pro se defendant who is
financially able to retain counsel elects to do so, the court's appointment
of an attorney pursuant to §3109 shall be terminated.
2.18 Termination of Appointment.
In any case in which appointment of counsel has been made and the court
subsequently finds that the person is financially able to obtain counsel,
such appointment should be terminated. (Use CJA Form 7, Appendix A.)
2.19 Federal Defender Organizations. When
cases are assigned to a Federal Public or Community Defender Organization,
the appointment should be made in the name of the Organization (i.e.,
the Federal Public Defender or Community Defender), rather than in the
name of an individual staff attorney within the Organization. (see paragraph
4.04 of these Guidelines).
Part C. Compensation and Expenses of Appointed
Counsel
2.20 Forms to be Used. Forms for
the compensation and reimbursement of expenses to appointed counsel, together
with instructions for the execution and distribution thereof, are included
in Appendix A. A copy of all supporting documents which itemize or expand
the amounts shown on the face of CJA Form 20 must be attached to at least
copies numbered l and 2.
2.21 Time Limits.
A. Vouchers shall be submitted no later than 45 days after the final
disposition of the case, unless good cause is shown. The clerks of the
concerned courts should ensure that attorneys are complying with the
prescribed limits. Every effort should be made to have counsel submit
the claim as soon as possible upon completion of services rendered.
B. Absent extraordinary circumstances, judges should act upon panel
attorney compensation claims within 30 days of submission.
2.22 Limitations.
A. Hourly Rates.
(1) In General. Except in federal capital prosecutions
and in death penalty federal habeas corpus proceedings, compensation
paid to appointed counsel may not exceed $90 per hour for time expended
in court or out of court or before a United States magistrate judge,
effective for work performed on or after May 1, 2002, but prior to
January 1, 2006 (Pub. L. No. 107-77, 115 Stat. 748 (2001)).1.
For work performed on or after January 1, 2006, the hourly compensation
paid may not exceed $92 (Pub. L. No. 109-115, 119 Stat. 2396 (2005)).2.
(See paragraph 6.02A regarding compensation of counsel in federal
capital cases and death penalty federal habeas corpus proceedings.)
(2) Annual Increase in Hourly Rate Maximums. Subsection
(d)(1) of the Act, as amended by the CJA Revision of 1986, also authorizes
the Judicial Conference to increase annually all hourly rate maximums
by an amount not to exceed the federal pay comparability raises given
to federal employees, beginning three years after the Act’s March
14,1987 effective date. Hourly rate maximums will be adjusted automatically
each year in accordance with any federal pay comparability adjustment,
contingent upon the availability of sufficient funds. The new rates
will apply with respect to services performed on or after the effective
date.
B. Case Compensation Maximums.
(1) General.
(i) Applicability and Exclusions. The Omnibus
Appropriations Act, Fiscal Year 2005, included as part of Pub. L.
No. 108-447, effective December 8, 2004, amended subsection (d)(2)
of the CJA to increase the case compensation maximum amounts for
attorneys. The new case compensation maximum amounts are indicated
in paragraph 2.22 B(2) below. All compensation limits are for each
attorney in each case. The case compensation limits are not
applicable in federal capital cases and in death penalty
federal habeas corpus proceedings. (See paragraph 6.02 A.) As further
explained in paragraph 2.22 B(3), the CJA places limitations on
the general authority of presiding judicial officers
to unilaterally approve attorney compensation. Payments above case
compensation limits referred to in subparagraph (2) below may be
authorized when certified by the presiding judicial officer and
approved by the chief judge of the circuit. The chief judge of the
circuit is permitted to delegate this approval authority to another
active circuit judge. Presiding judicial officers should certify
excess compensation payments to counsel whenever in their judgment
the case involves extended or complex representation and the amount
certified is necessary to provide fair compensation. (See paragraph
2.22 B(3)). Case compensation limits apply only to attorney fees.
There is no limit on the presiding judicial officer's authority
to approve the reimbursement of expenses of counsel
and the chief judge of the circuit has no role in authorizing the
payment of such expenses. (See paragraph 2.27 for an explanation
of reimbursable out-of-pocket expenses.)
(ii) Change in Offense Classification Level.
If a case is disposed of at an offense level lower than the offense
originally charged, the compensation maximum is determined by the
higher offense level.
(iii) More than One Counsel. In difficult cases
in which the court finds it necessary to appoint more than one attorney,
the limitations apply to each attorney.
(2) Specific Proceedings.
(i) Felonies [except federal capital prosecutions].
$7,000 for trial court level.
$5,000 for appeal.
(ii) Misdemeanors [including petty offenses (class
B or C misdemeanors or infractions) as set forth in subsection (a)(2)(A)
of the Act].
$2,000 for trial court level.
$5,000 for appeal.
(iii) Proceedings under section 4106A of title 18, United
States Code [in connection with paroled prisoners transferred
to the United States].
$1,500 for representation before the United States Parole Commission.
$5,000 for appeal.
(iv) Proceedings under sections 4107 or 4108 of title
18, United States Code [for counsel and guardians ad litem
providing services in connection with prisoner transfer proceedings.
See Regulations for the Appointment of Counsel Pursuant
to a Prisoner Transfer Treaty, which appears at Section
B of this Volume, regarding appointment of counsel or guardians
ad litem under 18 U.S.C. §4109].
$2,000 for each verification proceeding.
(v) Pre-Trial Diversion.
$7,000 if offense alleged by the U.S. Attorney is a felony.
$2,000 if offense alleged by the U.S. Attorney is a misdemeanor.
(vi) Proceedings under section 983 of title 18, United
States Code [for services provided by counsel appointed
under 18 U.S.C. §983(b)(1) in connection with certain judicial civil
forfeiture proceedings].
$7,000 for trial court level.
$5,000 for appeal.
(vii) Non-capital Post-Conviction Proceedings under sections
2241, 2254 or 2255 of title 18, United States Code.
$7,000 for trial court level.
$5,000 for appeal.
(viii) Proceedings to Protect Federal Jurors Employment
under section 1875 of title 28, United States Code.
$7,000 for trial court level.
$5,000 for appeal.
(ix) Other Representations required or authorized by the
CJA.
$1,500 for trial court level.
$1,500 for each level of appeal.
[This category includes but is not limited to the following representations:
(a) Probation Violation;
(b) Supervised Release Hearing [for persons
charged with a violation of supervised release or facing modification,
reduction or enlargement of a condition or extension or revocation
of a term of supervised release];
(c) Parole Proceedings under chapter 311 of title 18,
U.S.C.;
(d) Material Witness in Custody;
(e) Mental Condition Hearings Pursuant to chapter 313
of title 18, U.S.C. [with the exception of hearings pursuant
to sections 4241 and 4244 of title 18, U.S.C., which are considered
part of the case in chief with no separate compensation maximums
applying. (A chart detailing the treatment for the purpose of
compensation of representation at each hearing pursuant to chapter
313 is included as Appendix H.)];
(f) Civil or Criminal Contempt [Where the person
faces loss of liberty];
(g) Witness [before a grand jury, a court,
the Congress, or a federal agency or commission which has the
power to compel testimony, where there is a reason to believe
either prior to or during testimony, that the witness could be
subject to a criminal prosecution, a civil or criminal contempt
proceeding, or face loss of liberty];
(h) International Extradition [under chapter
209 of title 18, U.S.C.].
(x) Ancillary Matters. Representation in ancillary
matters shall be compensable as part of the representation in the
principal matter for which counsel has been appointed, and shall
not be considered a separate appointment for which a separate compensation
maximum would apply.
(3) Waiving Case Compensation Maximums. Payments
in excess of CJA compensation maximums may be made to provide fair
compensation in cases involving extended or complex representation
when so certified by the court or United States magistrate judge and
approved by the chief judge of the circuit (or by an active circuit
judge to whom excess compensation approval authority has been delegated).
In determining if an excess payment is warranted, the court or United
States magistrate judge and the chief judge of the circuit (or an
active circuit judge to whom excess compensation approval authority
has been delegated) should make a threshold determination as to whether
the case is either extended or complex. If the legal or factual issues
in a case are unusual, thus requiring the expenditure of more time,
skill and effort by the lawyer than would normally be required in
an average case, the case is "complex." If more time is reasonably
required for total processing than the average case, including pre-trial
and post-trial hearings, the case is "extended."
After establishing that a case is extended or complex, the approving
judicial officer should determine if excess payment is necessary to
provide fair compensation. The following criteria, among others, may
be useful in this regard: responsibilities involved measured by the
magnitude and importance of the case; manner in which duties were
performed; knowledge, skill, efficiency, professionalism, and judgment
required of and used by counsel; nature of counsel's practice and
injury thereto; any extraordinary pressure of time or other factors
under which services were rendered; and any other circumstances relevant
and material to a determination of a fair and reasonable fee.
(4) Case Budgeting. Courts are encouraged to use
case budgeting techniques in representations that appear likely to
become or have become extraordinary in terms of potential cost (ordinarily,
a representation in which attorney hours are expected to exceed 300
hours or total expenditures are expected to exceed $30,000 for appointed
counsel and services other than counsel on behalf of an individual
CJA defendant). If a court determines that case budgeting is appropriate
(either on its own or upon request of counsel), counsel should submit
a proposed initial litigation budget for court approval, subject to
modification in light of facts and developments that emerge as the
case proceeds. Case budgets should be submitted ex parte and
filed and maintained under seal. See generally the case budgeting
principles pertaining to capital cases in paragraph 6.02F of these
Guidelines.
Recognizing that investigative, expert, and other services may be
required before counsel has an opportunity to prepare a case budget
or the court to approve it, courts should act upon requests for services
where prompt authorization is necessary for adequate representation.
Courts, in examining the case budget, may reconsider amounts authorized
for services prior to the budget’s approval; however, courts shall
not rescind prior authorization where work has already been performed.
C. Supporting Memorandum.
(1) Claim for Less than the Case Compensation Maximum.
In any case in which the total compensation claimed is less than the
statutory case compensation maximum, counsel may be required to submit
a memorandum supporting and justifying the compensation claimed, whenever
called for by local rule, standing order, or by the presiding judicial
officer.
(2) Claim for More than the Case Compensation Maximum.
In any case in which the total compensation claimed is in excess of
the statutory case compensation maximum, counsel shall submit with
the voucher a detailed memorandum supporting and justifying counsel's
claim that the representation given was in an extended or complex
case, and that the excess payment is necessary to provide fair compensation.
Upon preliminary approval of such claim by the presiding judicial
officer, the court should furnish to the chief judge of the circuit
a memorandum containing its recommendation and a detailed statement
of reasons.
D. Impact of an Appropriation Shortfall on Voucher Review.
Vouchers should not be delayed or reduced for the purpose of diminishing
Defender Services program costs in response to adverse financial circumstances.
E. Reduction of CJA Compensation Vouchers by the Reviewing Judge.
The Criminal Justice Act provides that the reviewing judge shall fix
the compensation and reimbursement to be paid to appointed counsel.
If 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. However, notice need not be given to appointed counsel where
the reduction is based on mathematical or technical errors. Nothing
contained in this guideline should be construed as requiring a hearing
or as discouraging the court from communicating informally with counsel
about questions or concerns in person, telephonically, or electronically,
as deemed appropriate or necessary.
F. Payments by a Defendant Under Subsection (f) of the Act.
No appointed attorney shall accept a payment from or on behalf of the
person represented without authorization by a United States district
or circuit judge or magistrate judge on CJA Form 7. If such payment
is authorized, it shall be deducted from the fee to be approved by the
court under subsection (d) of the Act. In this regard, the combined
payment to any one attorney for compensation from both the person represented
and the government shall be subject to applicable dollar limitations,
unless excess compensation is approved under subsection (d)(3) of the
Act. Whenever the court finds that funds are available for payment from
or on behalf of a person represented and directs that such funds be
paid to the court for deposit in the Treasury, payment should be made
by a check or money order drawn to the order of the clerk of court,
who will deposit all monies received to the credit of the Treasury and
credit such sums to the CJA appropriation. Subsection (f) of the Act
does not authorize a judicial officer to require reimbursement as a
condition of probation, and the Judicial Conference believes that reimbursement
of the cost of representation under the Act should not be made a condition
of probation under any other authority.
G. Services Before United States Magistrate Judges. United States
magistrate judges may only approve vouchers for services rendered in
connection with a case disposed of entirely before the United States
magistrate judge.
2.23 Prior Authorization by Court to Counsel
to Incur Expenses. Court plans may require advance authorization
for such items as counsel's expenses over stipulated amounts or counsel's
travel in excess of stipulated distances. Such advance authorization need
not be submitted to the Administrative Office.
2.24 Proration of Claims. When a
defendant is charged in one indictment with severable counts, one voucher
should be submitted and one maximum applied under subsection (d)(2) of
the Act, whether or not the counts are severed for trial. When a defendant
is charged in two or more indictments (other than a superseding indictment
or information), a separate voucher should be submitted, and a separate
maximum applied under subsection (d)(2) of the Act, for each indictment,
whether or not the indictments are consolidated for trial.
Where single counsel is appointed to represent multiple defendants,
separate vouchers should be submitted, and a separate maximum applied
under subsection (d)(2) of the Act, for each defendant represented.
Whenever appointed counsel submit separate vouchers, as provided by
this paragraph, time spent in common on more than one indictment or case
must be prorated among the indictments or cases on which the time was
spent; and each indictment or case must be cross-referenced on the vouchers.
Time spent exclusively on any one indictment or case may properly be charged
on the voucher for that indictment or case.
2.25 Substitution of Counsel. If
an attorney is substituted for an attorney previously appointed for a
defendant in the same case, the total compensation which may be paid both
attorneys shall not exceed the statutory maximum for one defendant, unless
the case involves extended or complex representation. In such cases, vouchers
for attorney's services shall not be approved by a judicial officer until
the conclusion of the trial so that the judicial officer may make such
apportionment between the attorneys as may be just.
2.26 Travel Time. Compensation shall
be approved for time spent in necessary and reasonable travel. Ordinarily,
allowable time for travel includes only those hours actually spent in
or awaiting transit. Accordingly, if a trip necessarily and reasonably
requires overnight lodging, compensable travel time to the destination
from the claimant's office would terminate upon arrival and check-in at
the hotel or other place of accommodation plus travel time returning directly
to the claimant's office from said destination. Compensation for travel
time shall be at a rate not to exceed the rate provided in subsection
(d) of the Act for "time reasonably expended out of court."
If such travel is made for purposes in addition to representing the
person whom the attorney has been appointed to represent under the Act,
the court shall determine whether, in fairness to the appointed attorney,
the travel time should be apportioned, and the appointed attorney compensated
for that portion of the travel time reasonably attributable to the performance
of the attorney's duties under the Act. In determining whether such travel
time should be so apportioned, the court may consider the time reasonably
expended in the performance of the attorney's duties under the Act, in
relation to the time expended furthering other purposes of the trip, the
significance to the representation of the duties performed, and the likelihood
that the attorney would have made the trip to perform the duties under
the Act in the absence of the other purposes for making the trip.
2.27 Reimbursable Out-of-Pocket Expenses.
Out-of-pocket expenses reasonably incurred may be claimed on the voucher,
and must be itemized and reasonably documented. Expenses for investigations
or other services under subsection (e) of the Act shall not be considered
out-of-pocket expenses.
A. Reimbursement for Transcripts.
(1) Generally, court reporters or reporting services which furnish
court authorized transcripts in CJA cases claim and receive compensation
for their services on the CJA Form 24, "Authorization and Voucher
for Payment of Transcript," (See paragraph 3.12 of these Guidelines).
While this is the preferred method for payment of transcripts, if
assigned counsel has elected to pay for the court authorized transcripts
"out-of-pocket," the cost may be claimed as a reimbursable expense,
as provided for in subsection (d)(1) of the Criminal Justice Act.
However, unlike most reimbursable expenses, which should be claimed
on the CJA Form 20, "Appointment of and Authority to Pay Court Appointed
Counsel," reimbursement to the attorney who has paid for the transcript
as an "out-of-pocket" expense should be claimed on a CJA Form 24.
(See Appendix A).
(2) The cost of transcribing depositions in criminal cases is the
responsibility of the Department of Justice pursuant to Rule 17b of
Fed. R. Crim. P. (but when witness is an expert, then the Administrative
Office will pay out of CJA funds)(53 Comp. Gen. 638 (1974)).
B. Computer-Assisted Legal Research. The cost of use,
by appointed counsel, of computer-assisted legal research services,
may be allowed as a reimbursable out-of-pocket expense, provided that
the amount claimed is reasonable. Whenever appointed counsel incurs
charges for computer-assisted legal research, counsel should attach
to the compensation voucher a copy of the bill and receipt for the use
of the legal research services or an explanation of the precise basis
of the charge (e.g., indicating the extent to which it was derived by
proration of monthly charges, or by charges identifiable to the specific
research). If the amount claimed is in excess of $500 or if it includes
costs for downloading or printing, counsel should include a brief statement
of justification.
C. Travel Expenses. Travel by privately owned automobile
should be claimed at the rate currently prescribed for federal judiciary
employees who use a private automobile for conduct of official business,
plus parking fees, ferry fares, and bridge, road, and tunnel tolls.
Transportation other than by privately owned automobile should be claimed
on an actual expense basis.
Per diem in lieu of subsistence is not allowable, since the Act provides
for reimbursement of expenses actually incurred. Therefore, counsel's
expenses for meals and lodging incurred in the representation of the
defendant would constitute reimbursable "out-of-pocket" expenses. In
determining whether actual expenses incurred are "reasonable," counsel
should be guided by the prevailing limitations placed upon travel and
subsistence expenses of federal judiciary employees in accordance with
existing government travel regulations.
Government travel rates at substantial reductions from ordinary commercial
rates may be available from common carriers for travel authorized by
the court in connection with representation under the CJA. To obtain
such rates, attorneys must contact the clerk of the court and obtain
prior approval from the presiding judicial officer.
D. Interim Reimbursement for Expenses. Where it is
considered necessary and appropriate in a specific case, the presiding
judge or United States magistrate judge may, in consultation with the
Administrative Office, arrange for interim reimbursement to counsel
of extraordinary and substantial expenses incurred in providing representation
in a case. Interim reimbursement should be authorized when counsel's
reasonably-incurred, out-of-pocket expenses for duplication of discoverable
materials made available by the prosecution exceed $500.
E. Reimbursement for Expenses Incurred Defending Malpractice
Allegations.
The CJA was amended by the Federal Courts Improvement Act of 2000,
Pub. L. No. 106-518, to authorize courts to reimburse panel attorneys
for expenses reasonably incurred in defending actions alleging malpractice
in furnishing representational services under the CJA. The amendment
covers expenses incurred on or after its effective date (November 13,
2000). No reimbursement shall be made if a judgment of malpractice is
rendered against the attorney; in view of this prohibition, no reimbursement
should be provided until the malpractice claim is resolved.
The total reimbursement shall not exceed the deductible amount of
counsel's professional liability insurance policy or $5,000, whichever
is less. Expenses qualifying for reimbursement may include, but are
not limited to, the costs of transcripts, witness fees and costs, and
attorney fees. In determining reasonable attorney fees for this purpose,
CJA rates are inapplicable. Reimbursement shall not include compensation
for representing oneself in defending the action alleging malpractice,
or, if represented by counsel, for time spent assisting that counsel
in defending the action.
Reimbursement should be claimed under the expense categories on a
CJA Form 20 (or, where the appointment was in a capital matter, CJA
Form 30), and supporting documentation should be attached.
F. Other. This would include items such as telephone
toll calls, telegrams, copying (except printing -- see paragraph 2.28
D below) and photographs.
2.28 Non-reimbursable Items. Appointed
counsel may not claim reimbursement for the following:
A. General Office Overhead. General office overhead
includes general office expenses which would normally be reflected in
the fee charged to the client. The statutory fee is intended to include
compensation for these general office expenses. Therefore, except in
extraordinary circumstances (see paragraph 3.16), personnel, rent, telephone
service, and secretarial expenses associated with CJA representation,
whether work is performed by counsel or other personnel, are not reimbursable.
B. Items and Services of Personal Nature. The cost
of items of a personal nature purchased for or on behalf of the person
represented, such as purchasing new clothing or having clothing cleaned,
getting a haircut, furnishing cigarettes, candy or meals, etc. Also,
the cost of services of a personal nature and expenses incidental thereto
which cannot be considered legal representation, such as assisting the
defendant in the disposition of his or her personal property, arranging
for the placement of minor children of the defendant, assisting the
defendant in executing the conditions of probation, providing legal
assistance in matters unrelated to the litigation of the case, although
incidental to the defendant's arrest, etc.
C. Filing Fees. Attorneys should not be required
to pay a filing fee in a Criminal Justice Act case inasmuch as such
payment and reimbursement thereof is tantamount to the Government billing
itself to accomplish a transfer of appropriated funds into the General
Fund of the Treasury.
D. Printing of Briefs. The expense of printing briefs,
regardless of the printing method utilized, is not reimbursable; however,
the cost of mimeographing, "xeroxing," or similar copying service is
reimbursable.
E. Service of Process. Witness fees, travel costs,
and expenses for service of subpoenas on fact witnesses, are not payable
out of the CJA appropriation but are governed by Rule 17, Fed. R. Crim.
P. and 28 U.S.C. §1825.
F. Taxes. Taxes paid on attorney compensation received
pursuant to CJA, whether based on income, sales or gross receipts, are
not reimbursable expenses.
2.29 Writ of Certiorari. Counsel's
time and expenses involved in the preparation of a petition for a writ
of certiorari are considered as applicable to the case before the United
States Court of Appeals, and should be included on the voucher for services
performed in that court.
2.30 Interim Payments to Counsel.
A. Non-Death Penalty Cases. Where it is considered
necessary and appropriate in a specific case, the presiding trial judge
may arrange for periodic or interim payments to counsel. Appendix E
(pages E-1 through E-6) contains instructions on the procedures for
effecting interim payments to counsel, as well as a sample memorandum
order on this subject which provides for two alternative payment methods.
The payment options provided in the order are designed to strike a balance
between the interest in relieving court-appointed attorneys of financial
hardships in extended and complex cases, and the practical application
of the statutorily imposed responsibility of the chief judge of the
circuit to provide a meaningful review of claims for excess compensation.
Other interim payment arrangements which effectuate this balance may
be devised in consultation with the Office of Defender Services of the
Administrative Office of the United States Courts.
B. Death Penalty Cases. Presiding judicial officers
are urged to permit interim payments in death penalty cases. Since the
Anti-Drug Abuse Act of 1988 effectively repealed the CJA hourly rates
and case maximums with respect to death penalty cases, a separate set
of procedures and a separate memorandum order should be used in those
cases. These procedures and a sample memorandum order are set forth
in Appendix E, at page E-7.
2.31 Record Keeping. Appointed counsel
must maintain contemporaneous time and attendance records for all work
performed, including work performed by associates, partners, and support
staff, as well as expense records. Such records, which may be subject
to audit, must be retained for three years after approval of the final
voucher for an appointment.
1See also H.R. REP. NO. 107-278, at 143
(2001) (Conf. Rep.), as reprinted in 2002 U.S.C.C.A.N. 793, 856,
2001 WL 1402218, and H.R. REP. NO. 107-139, at 92-93, 2001 WL 790764.
2See also H.R. REP. NO. 109-307, at 73, 112,
279 (2005) (Conf. Rep.), 2005 WL 3131557, and S. REP. NO. 109-109, at
196 (2005), 2005 WL 1774046.
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