In Re: Marcum L.L.P.
2012 U.S. App. LEXIS 2610
5th Cir.2012Background
- Marcum L.L.P. served as an expert in United States v. Stanford in SD Texas, paid under the CJA for services including anticipated testifyings.
- Payments exceeding $2,400 require district-court certification and circuit-chief-judge approval under 18 U.S.C. § 3006A(e)(3).
- Chief Judge Edith H. Jones issued an Order after Marcum’s December 30, 2011 resignation letter, approving partial fees and directing continued work through trial.
- Marcum sought stay or mandamus review of the portion directing continued work, arguing for appellate relief from the Chief Judge’s Order.
- The panel concluded it lacked jurisdiction to review the Chief Judge’s Order under the CJA framework, and dismissed the petition for lack of jurisdiction.
- Marcum’s motion to file CJA documents under seal was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Issue 1: jurisdiction to review the Chief Judge's Order | Marcum seeks review of the Order directing continued work. | CJA orders are non-appealable administrative acts; no jurisdiction in this court. | Lack of jurisdiction; not a final or interlocutory district-court decision. |
| Issue 2: availability of mandamus review | All Writs Act allows mandamus where appropriate. | No independent jurisdictional basis; mandamus improper here. | No mandamus jurisdiction; remedy lies elsewhere, possibly Supreme Court. |
| Issue 3: nature of the order under review | Order impermissibly extends compensation beyond the certified amount by directing continued service. | Order is within Chief Judge’s authority under CJA. | Order issued under CJA authority; not reviewable here. |
Key Cases Cited
- United States v. D’Andrea, 612 F.2d 1386 (7th Cir. 1980) (review of chief judge's CJA decision limited; Supreme Court mandamus possible)
- United States v. Obasi, 435 F.3d 847 (8th Cir. 2006) (chief circuit judge decision reviewable only by reconsideration or mandamus)
- United States v. Johnson, 391 F.3d 946 (8th Cir. 2004) (CJA fee determinations are administrative, not appealable orders)
- United States v. Stone, 53 F.3d 141 (6th Cir. 1995) (§ 3006A fee determinations are not appealable orders)
- Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) (mandamus confines to proper jurisdictional purposes; not here)