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Date: Thu, 29 May 1997 22:04:34 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: U.S. v. Stone (fwd)
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>Date: Fri, 30 May 1997 00:29:00 -0400
>From: "Dr. Braces" <drbraces@smart1.net>
>Organization: SouthFlorida Orthodontics
>To: pmitch@primenet.com
>Subject: us v stone
>
>--
>RECOMMENDED FOR FULL-TEXT PUBLICATION
>Pursuant to Sixth Circuit Rule 24
>ELECTRONIC CITATION: 1995 FED App. 0128P (6th Cir.)
>File Name: 95a0128p.06
>No. 94-5408
>UNITED STATES COURT OF APPEALS
>FOR THE SIXTH CIRCUIT_________________
>UNITED STATES OF AMERICA,
> Plaintiff-Appellee,
> v.
>RALPH C. STONE,
> Defendant,
> C. MICHAEL SEIBERT
> Attorney
>ON APPEAL from the United States District Court for the Western District
>of Tennessee
>_________________
>Decided and Filed April 27, 1995__________________
> Before: MERRITT, Chief Judge; SILER, Circuit Judge; EDMUNDS,
>District Judge.*
>*The Honorable Nancy G. Edmunds, United States District Judge for the
>Eastern District of Michigan, sitting by designation.
>SILER, Circuit Judge. Appellant C. Michael Seibert ("Seibert"), the
>court-appointed attorney for Defendant Ralph Stone, challenges the
>district court's decision, made pursuant to 18 U.S.C. § 3006A(d)(3),
>reimbursing Seibert only $33,693.80 in defense costs rather than the
>full $47,077.36 requested by Seibert.
> For the reasons stated herein, we dismiss this appeal for lack
>of jurisdiction.
>I. Ralph and Joanne Stone, along with 25 co-defendants, were indicted
>in Memphis, Tennessee, in a 53-count indictment for failure to file
>income forms, conspiracy to defraud by obstructing the I.R.S. in
>collection of taxes, tax evasion, and obstructing and impeding by force
>and threats of force the due administration of Title 26 of the United
>States Code. Stone and his wife retained Seibert, who practiced law in
>Alabama, as counsel for their defense. Soon thereafter, however, the
>Stones moved the court for appointment of counsel on the basis of
>indigency. The district court held that the Stones were indigent for
>purposes of expenses and, at the Stones' request, appointed Seibert as
>counsel. After working for both Mr. and Mrs. Stone for some time,
>Seibert became aware of a possible conflict. For this reason, Seibert
>declined representation of Joanne Stone, and continued representing Mr.
>Stone. Ms. Kathleen Caldwell represented Joanne Stone for the remainder
>of the case.
> The case was tried in Memphis from February 26, 1991, to July 3,
>1991. On July 9, the jury returned a verdict of acquittal for both
>Ralph and Joanne Stone. On February 18, 1992, Seibert filed a motion
>pursuant to § 3006A(d)(1) of the Criminal Justice Act ("CJA") for the
>payment of $47,077.36 in attorney's fees and defense costs. The
>district court certified payments of excess fees under § 3006A(d)(3),
>but recommended payment to Seibert of only $33,693.80. Seibert twice
>moved the district court for reconsideration, but the district court
>denied both motions. Judge Boyce F. Martin, Jr. of this court, acting
>for the chief judge, approved the $33,693.80 award. As of the time of
>this appeal, Seibert has received $31,112.63 of the approved award.
>Seibert primarily challenges the district court's failure to authorize
>the full $47,077.36. He also requests that he be awarded at least the
>remaining $2,500.00 owed to him.
>II. A) Timeliness of this Appeal.
> The government argues as an initial matter that this court lacks
>jurisdiction to decide this case due to Seibert's failure to comply with
>Fed. R. App. P. 4(b), which requires a criminal defendant to file his
>notice of appeal within ten days (or thirty days if excusable neglect is
>found) of "entry either of the judgment or order appealed from." Of
>course, the government's position presupposes that Rule 4(b), rather
>than Rule 4(a), applies. The government, however, offers no support
>for this supposition and this issue appears to be one of first
>impression for this circuit.
> We decline to decide this issue. If this court were to decide
>the case based upon an application of Rule 4(b), it would be implicitly
>ruling that the fee determination is an appealable order. Furthermore,
>it requires this court to essentially make new law on whether a § 3006A
>order is criminal or civil in nature. For these reasons, we will
>address only the determinative issue of the case--the reviewability of
>the compensation order.
>B) Reviewability of the Compensation Order.
> The CJA authorizes compensation for services rendered and
>expenses incurred by court-appointed counsel. Section 3006A specifies
>the maximum amount to be awarded, but allows a district court to
>authorize or "certify" fee amounts in excess of the maximums when the
>representation is
> If Rule 4(a) applied, Seibert would have sixty, not forty, days to file
>his notice of appeal.
>"extended or complex." 18 U.S.C. § 3006A(d)(3). The district court has
>the discretion to determine the appropriate amount for the fee based, in
>part, on the nature of the case and the extent of the representation.
>Once the district court has made this determination, it will certify
>this amount to the chief judge of the circuit for "approval." Id.
>Section 3006A does not provide for formal review by the chief judge,
>however, as the CJA only requires his "approval" of the recommended
>amount. Significantly, the CJA is silent on when and if appellate
>review of the district court's fee determination is available. For this
>reason, if review is proper, the order must be a "final decision of the
>district court" as provided by 28 U.S.C. § 1291 or satisfy the
>collateral order exception.
> The appealability of a § 3006A order is an issue of first
>impression for this circuit. Of the circuits that have decided the
>issue, the majority have held that fee determinations by a district
>court are not reviewable orders. Indeed, the Federal, Seventh, Ninth,
>Tenth, and Eleventh Circuits all have held that reimbursement
>determinations are non-appealable. Shearin v. United States, 992 F.2d
>1195, 1196 (Fed. Cir. 1993); United States v. Smith, 633 F.2d 739,
>741-42 (7th Cir. 1980), cert. denied, 451 U.S. 970 (1981); United States
>v. Walton (In re Baker), 693 F.2d 925, 926 (9th Cir. 1982); United
>States v. Davis, 953 F.2d 1482, 1497 n.21 (10th Cir. 1992), cert.
>denied, 112 S. Ct. 2286 (1992); United States v. Rodriguez, 833 F.2d
>1536, 1537 (11th Cir. 1987).
> No circuit has explicitly held the other way. While both the
>Eighth and the Fourth Circuits have reviewed the appropriateness of
>attorney fees awards under § 3006A, the reviewability of the orders was
>not an issue in either case. See United States v. Turner, 584 F.2d 1389
>(8th Cir. 1978)(without discussing jurisdiction for the appeal, finding
>no abuse of discretion in district court's award of fees); United States
>v. Ketchem, 420 F.2d 901 (4th Cir. 1969)(order of reimbursement without
>analysis of jurisdiction).
> We agree with the Federal, Seventh, Ninth, Tenth and Eleventh
>Circuits and hold that § 3006A fee determinations are not appealable
>orders. There are a number of reasons for this conclusion. First, we,
>like the Federal and Eleventh Circuits, find it significant that the CJA
>itself does not provide for appellate review of the fee determination.
>See Shearin, 992 F.2d at 1196; Rodriguez, 833 F.2d at 1537. Rather, the
>determination rests entirely with the discretion of the district court,
>with only minimal review by the chief judge of the circuit.
> The non-adversarial nature of the reimbursement provisions also
>supports the conclusion that fee determinations are non-appealable.
>Under the CJA, the appointed attorney files a voucher with the district
>court explaining the amount requested. Without notifying the
>government, the district court then determines the appropriate amount.
>This decision, however, is in no way outcome dependent. In this sense
>then, fee determinations are administrative in nature. Smith, 633 F.2d
>at 741; Walton, 693 F.2d at 927; Davis, 953 F.2d at 1497 n.21;
>Rodriguez, 833 F.2d at 1538. This conclusion is significant, as this
>circuit has held that purely administrative decisions of the district
>court judge are not appealable orders under 28 U.S.C. § 1291. Rini v.
>Clerk, United States Bankruptcy Court, 782 F.2d 603, 606-07 (6th Cir.
>1986). Finally, as the Seventh Circuit noted in Smith, 633 F.2d at 741,
>legislative history supports the conclusion that § 3006A(d) fee awards
>are not reviewable.
> We also reject Seibert's contention that the § 3006A fee
>determination is a "collateral order." The "collateral order doctrine"
>enunciated by the Supreme Court in Cohen v. Beneficial Indus. Loan
>Corp., 337 U.S. 541 (1949), permits courts to review an interlocutory
>order only when that order: (1) conclusively determines the disputed
>question; (2) resolves an important question that is not dependent upon
>the merits for its resolution; and (3) is effectively unreviewable on
>appeal from the final judgment.
> Gulfstream Aerospace Corp. v. MayacamasCorp., 485 U.S. 271, 276
>(1988); In re Westwood Shake & Shingle, Inc., 971 F.2d 387, 390 (9th
>Cir. 1992)(citing Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)).
>This doctrine, by its own terms, does not apply to § 3006A
>determinations. The fee determination at issue is an administrative
>decision, not an "interlocutory order." Furthermore, a district court's
>determination of the appropriate fee at least implicitly requires
>consideration of the merits of the case. For example, the present
>district court considered the nature of the claim and the strength of
>the case against Stone, as it directly effected the amount of
>preparation required. Moreover, we find it significant that Seibert
>can cite no case law to support his position. While Seibert cites
>United States v. Poland (In re Derickson), 640 F.2d 946 (9th Cir. 1981),
>in support, that case held appealable only a district court's
>determination that it lacked jurisdiction to consider an untimely
>voucher. The Poland court explicitly stated that it was not deciding
>"whether amounts awarded, methods of computation, or like matters
>related to attorney's fees under the CJA are appealable." Id. at 948.
>Indeed, the Ninth Circuit, in a later case, expressly rejected the
>argument that Cohen applies to § 3006A fee determinations. Walton, 693
>F.2d at 926-27. In light of the above concerns, and the fact that
>"[d]oubts regarding appealability ... [should be] resolved in favor of
>finding that the interlocutory order is not appealable," In re Westwood,
>971 F.2d at 390 (citing Matter of PHM Credit Corp., 99 B.R. 762, 765
>(E.D. Mich. 1989)), we find the § 3006A fee determinations are not
>collateral orders.
> Finally, Seibert should be able to receive the additional
>$2,500.00 owed to him by writing to the office of the clerk of this
>court and requesting it. If Judge Martin has authorized it, there
>should be no problem receiving the amount owed, but it is not a matter
>for an appeal.
> DISMISSED.
>
>
>
>With Love, Liberty and Justice for All,
>Alex
>http://www.drbraces.com
>e-mail: drbraces@drbraces.com
>
>"When the people fear their government you have tyranny.
>When the government fears the People, you have liberty."
> Thomas Jefferson
>
>Liberty is NEVER an option... only a condition to be lost!
>
>
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