Marcum LLP v. United States
112 Fed. Cl. 167
Fed. Cl.2013Background
- Marcum LLP, a forensic-accounting/expert-services firm, was retained under the Criminal Justice Act (CJA) to assist the criminal defense of R. Allen Stanford and submitted large budgets/vouchers for work.
- District Judge Hittner certified some vouchers; Marcum submitted additional vouchers after November 2011 and alleges roughly $1.2 million remained unpaid.
- On January 4, 2012, Chief Judge Edith H. Jones (5th Cir.) issued a “Continuity and Payment Order” requiring Marcum to continue work through trial and approving partial payment of earlier vouchers; a contempt hearing was noticed when Marcum threatened resignation.
- Marcum sought reconsideration from the Chief Judge, petitions for mandamus/stays in the Fifth Circuit and the U.S. Supreme Court (all denied or dismissed), then filed a takings suit in the U.S. Court of Federal Claims alleging an uncompensated Fifth Amendment taking by enforced requisitioning of its business.
- The government moved to dismiss for lack of subject-matter jurisdiction, arguing that CJA compensation determinations are exclusively for the presiding tribunal and chief circuit judge and that the CFC cannot review or second-guess those decisions.
- The Court of Federal Claims granted the government’s motion and dismissed Marcum’s amended complaint for lack of jurisdiction, holding Marcum’s claim impermissibly seeks review of judicial/administrative CJA compensation decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CFC has Tucker Act jurisdiction over Marcum’s Fifth Amendment takings claim | Marcum: the actor (court or agency) does not control a takings analysis; CFC can hear takings claims against the U.S. seeking money damages | Gov: Marcum’s claim necessarily requires review of CJA fee decisions by the district court and chief circuit judge; CJA provides the exclusive remedial scheme and bars CFC review | Held: CFC lacks jurisdiction because Marcum’s claim would require scrutinizing non‑appealable CJA compensation determinations by other courts and thus cannot be recast as a takings claim |
| Whether Marcum’s claim is a disguised collateral attack on CJA compensation procedures | Marcum: framed as a constitutional takings claim, not an appeal of the Continuity and Payment Order | Gov: substance matters; relief sought targets CJA fee determinations and post‑order voucher treatment | Held: Court treats the claim as challenging CJA determinations and the Continuity and Payment Order, so jurisdiction is lacking |
| Whether the CJA provides an exclusive remedial framework for compensation disputes | Marcum: CJA review (chief judge / mandamus) is minimal and not equivalent to a takings suit in CFC | Gov: CJA’s administrative/judicial review is the exclusive remedy for CJA compensation matters | Held: CJA’s remedial scheme governs; prior circuit/Fed. Cir. precedent treats CJA fee decisions as non‑appealable administrative acts, preempting CFC jurisdiction |
| Whether prior attempts (reconsideration, mandamus, appeals) exhausted Marcum’s remedies and permit CFC jurisdiction | Marcum: prior remedies are not substitutes for a takings claim in CFC | Gov: Marcum pursued available CJA remedies (reconsideration, mandamus) and was denied; that does not create CFC jurisdiction | Held: Exhaustion/dismissal of those extraordinary remedies does not convert a CJA compensation dispute into a money‑mandating takings claim cognizable in CFC |
Key Cases Cited
- United States v. Navajo Nation, 556 U.S. 287 (statutory/regulatory source must be money‑mandating for Tucker Act jurisdiction)
- United States v. Testan, 424 U.S. 392 (Tucker Act requires independent money‑mandating source)
- United States v. Mitchell, 463 U.S. 206 (claim must be for money damages and traceable to substantive law mandating payment)
- Shearin v. United States, 992 F.2d 1195 (Fed. Cir. 1993) (CJA fee determinations are administrative, non‑appealable; CFC lacks jurisdiction)
- Innovair Aviation Ltd. v. United States, 632 F.3d 1336 (Fed. Cir. 2011) (CFC cannot entertain takings claims that require scrutiny of actions by other tribunals)
- Joshua v. United States, 17 F.3d 378 (Fed. Cir. 1994) (CFC lacks jurisdiction to review district court proceedings or clerk actions)
- Ontario Power Generation, Inc. v. United States, 369 F.3d 1298 (Fed. Cir. 2004) (three categories of Tucker Act monetary claims; money‑mandating analysis)
- D'Andrea, 612 F.2d 1386 (7th Cir. 1980) (chief circuit judge’s CJA decisions reviewable only by reconsideration or Supreme Court mandamus)