Case Information
*1 Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:
Petitioner Marcum L.L.P. (“Marcum”) has filed an Emergency Motion for Stay or Alternative Petition for Writ of Mandamus, which arises out of Marcum’s services as an expert in the trial of Allen Stanford, United States v. Stanford 4:09-cr-342 (S.D. Tex.). Marcum agreed that it would be paid for its services as provided under the Criminal Justice Act, 18 U.S.C. § 3006A (“CJA”), which allows, inter alia , for the appointment of professionals to provide “investigative, expert, or other services necessary for adequate representation . . . .” § 3006A(e)(1). Under the CJA, payments to experts above $2,400 must be certified by the district court in which services were rendered, and approved “by the chief judge of the circuit.” § 3006A(e)(3). This procedure applied in this case because Marcum’s requested compensation well exceeded the $2,400 threshold.
Marcum seeks appellate review of Chief Judge Edith H. Jones’s Service Provider Continuity and Payment Order (the “Order”), which was issued after Marcum submitted a letter of resignation on December 30, 2011. The Order approved partial payment of Marcum’s fees that were previously certified by the district court, and also directed Marcum “to continue work on the case as previously planned, including the provision of testifying experts, through the end of trial, and, if required by counsel, through the conclusion of the case in the district court.” Marcum appeals only this second part of the Order, and seeks either a stay pending appeal or a writ of mandamus. [1]
We are without jurisdiction to consider this appeal. The Chief Judge’s
Order is neither a “final decision[] of the district court[]” under 28 U.S.C. § 1291,
nor an appealable interlocutory district court order under 28 U.S.C. § 1292, but
rather an order issued pursuant to the Chief Judge’s authority under the CJA. 18 U.S.C. § 3006A(e)(3). As the Seventh Circuit in
United States v. D’Andrea
The Criminal Justice Act is silent on the availability of judicial review . . . of the decision by the chief judge of the circuit denying approval of the full amount certified by the court in which the representation was rendered. . . .
[W]hen the chief judge of the circuit has approved compensation or reimbursement less than that amount certified by the court in which the representation was rendered, counsel may request reconsideration by motion. However, this motion is addressed solely to the chief judge. Upon disposition of the request for the chief judge to review his decision, further review of the chief judge’s decision is not available from this Court and any counsel’s further remedy lies in a mandamus action in the United States Supreme Court.
Id.
at 1387-88. Other courts agree.
See United States v. Obasi
,
Although Marcum challenges the Order only insofar as the Order directs Marcum to “continue work on the case as previously planned” through the trial, and does not appeal the actual amount of funds awarded, the Order has nevertheless been issued pursuant to the Chief Judge’s authority under the CJA. As such, we have no jurisdiction to consider its merits. Whether the Chief Judge erred in issuing such an order can be resolved, if at all, only by the Supreme Court.
Marcum alternatively contends that we should treat its motion as a
petition for writ of mandamus. Although it is true that an appellate court has
the authority to enter mandamus under the All Writs Act, 28 U.S.C. § 1651, the
exercise of that authority requires some independent basis of jurisdiction.
See
Clinton v. Goldsmith
, 526 U.S. 529, 534 (1999) (“While the All Writs Act
authorizes employment of extraordinary writs, it confines the authority to the
issuance of process ‘in aid of’ the issuing court’s jurisdiction.”);
Neuman v.
Blackwell
,
Moreover, the writ of mandamus has traditionally been used only “‘to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so.’”
Gulfstream
Aerospace Corp. v. Mayacamas Corp.
,
For these reasons, Marcum’s Emergency Motion for Stay and Alternative Petition for Writ of Mandamus is DISMISSED FOR LACK OF JURISDICTION.
Marcum’s Motion for Leave to File CJA Documents Under Seal is GRANTED.
Notes
[1] Marcum also filed a motion for reconsideration with the Chief Judge, which she has denied.
[2] Although D’Andrea arose out of an attorney’s appeal following the disallowance of a portion of his claimed compensation under 18 U.S.C. § 3006A(d)(3), the excess attorney compensation procedure under 18 U.S.C. § 3006A(d)(3) is analogous to the procedure for excess expert compensation under Section 3006A(e)(3).
[3] Marcum has filed in the Supreme Court both a petition for writ of mandamus and an application for a stay of the Order. The application for a stay has been denied, and the petition remains pending. We observe that Marcum’s petition in fact recognizes that the Chief Judge’s Order is “not subject to review in a court of appeals,” a position which is inconsistent with that taken before this panel.