United States v. French

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UNITED STATES of America, Plaintiff, v. Sheila FRENCH, Defendant.

No. 07-5147.

United States Court of Appeals, Tenth Circuit.

Feb. 24, 2009.

556 F.3d 1091

Those are the very circumstances of this case. From reading their opinions, both the district court and the majority agree that punching Tortu on the head would be an action in which Engle could engage and yet be entitled to immunity in these circumstances. Only when applying the qualified immunity analysis to Tortu‘s testicle injury do they disagree. Yet the jury was never asked the basis of their finding of unreasonable force, therefore the majority‘s analysis fails. Again, we are not here on summary judgment with de novo review and construing the facts in Tortu‘s favor. We also should not speculate (as the majority seemingly does) as to which facts the jury found to be in violation of Tortu‘s constitutional rights, and decide if those rights were clearly established.

A new trial to determine those facts is therefore not an abuse. We must be certain “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” See Saucier, 533 U.S. at 202, 121 S.Ct. 2151.

IV. Speculative Damages Award

The district court found that Officer Engle was entitled to a new trial, because the jury‘s award of damages was speculative, excessive, and unsupported by clear weight of the evidence. The damages were speculative, because the minimal injuries suffered by Tortu could not support such a wide differential between the cost of Tortu‘s medical treatment (an amount of less than $5,000) and the ultimate award ($175,000). Accordingly, to avoid a miscarriage of justice, the district court concluded that a new trial was necessary.

Tortu presented evidence that his medical bills amounted to less than $5,000. Tortu‘s pain and suffering lasted no longer than two weeks. There was no evidence presented that the injury prevented Tortu from performing any ordinary tasks, or that he suffered even minimal discomfort after two weeks. The trial judge is in the best position to weigh the evidence of Tortu‘s embarrassment and humiliation. These facts support the conclusion that the clear weight of the evidence in the record did not support the jury‘s award. While one may disagree with the trial court, one cannot say that it abused its discretion in making the decision. These facts support its view.

We have also affirmed other district courts in similar situations. Oltz, 861 F.2d at 1453 (affirming the trial court‘s grant of motion for new trial based on its findings that damages were excessive); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1050 (9th Cir.1981) (same); Hanson, 541 F.2d at 1359 (same).

V. Conclusion

I disagree with the majority. The district court‘s granting of the motion for a new trial does not lie beyond the pale of reasonable justification under these circumstances. We must affirm if any of the grounds for granting a new trial are reasonable. Oltz, 861 F.2d at 1452.

William Dixon Lunn, Attorney-Appellant.

William D. Lunn, Tulsa, OK, Attorney-Appellant.

Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.

Submitted on the brief: *

* After examining the brief and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

BRISCOE, Circuit Judge.

William Lunn, who was appointed under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to represent Sheila French, submitted a voucher under the CJA for compensation and reimbursement of expenses incurred in representing Ms. French in resentencing proceedings. The district court approved payment in an amount significantly less than Mr. Lunn requested. He now seeks review of the district court‘s decision regarding his CJA compensation. We conclude that we are without jurisdiction to consider this appeal, and dismiss this appeal.

Ms. French was convicted on drug-related charges and sentenced to a term of imprisonment. She appealed her sentence, and this court reversed and remanded for resentencing in light of the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and for correction of an error in the drug-weight calculation. Mr. Lunn represented Ms. French on remand in the district court resentencing proceedings, which included two hearings and six briefs filed by Mr. Lunn (four of which were filed at the request of the district court). After the resentencing, Mr. Lunn submitted a CJA voucher requesting reimbursement of expenses and compensation in excess of the statutory maximum, for a total amount of $7,420.75. A magistrate judge reviewed the voucher request and recommended to the district court that the voucher be paid as request-

ed. In making his recommendation, the magistrate judge found that the case had previously been characterized by the court as “complex” (based in part on the sentencing issues) and that the sentencing issues on remand remained complex. He noted that the compensation request was unusually high, but that on close review and in light of the shifting sentencing landscape, compensation in excess of the statutory maximum was necessary to fairly compensate counsel. See 18 U.S.C. § 3006A(d)(3) (statutory maximum may be waived in complex or extended cases where court certifies that it is necessary for fair compensation). Finally, after detailed consideration, the magistrate judge found that the expenses should be reimbursed and that the compensation requested was reasonable and necessary.

The district court disagreed with the magistrate judge‘s recommendations and declined to adopt them. Instead, the district court found that Mr. Lunn‘s representation on resentencing was neither extended nor complex, and that he could be fairly compensated for his services within the statutory maximum. Consequently, the district court declined to certify the proceedings so as to exceed the statutory maximum; it authorized the then-statutory maximum compensation of $1,500 and reimbursement of expenses. Mr. Lunn appeals that order, arguing that this court has jurisdiction to consider whether a district court‘s denial of “virtually all” of a CJA compensation request is proper. Aplt. Br. at 22. He also claims the district court erred in refusing to certify his compensation request for payment in excess of the statutory maximum and that the compensation he received was not reasonable.

Every circuit court of appeals to consider this jurisdictional question has¹ held that CJA fee compensation determinations made by the district court are not appealable. United States v. Stone, 53 F.3d 141, 143 (6th Cir.1995); Shearin v. United States, 992 F.2d 1195, 1196 (Fed. Cir.1993); Landano v. Rafferty, 859 F.2d 301, 302 (3rd Cir.1988); United States v. Rodriguez, 833 F.2d 1536, 1537-38 (11th Cir.1987); United States v. Walton (In re Baker), 693 F.2d 925, 927 (9th Cir.1982); United States v. Smith, 633 F.2d 739, 742 (7th Cir.1980); cf. United States v. Bloomer, 150 F.3d 146, 148 (2d Cir.1998) (holding that orders concerning fee determinations for services already rendered under the CJA are not appealable).¹ Our circuit has come to the same conclusion, albeit in dicta: “Fee determinations by the district judge pursuant to the [CJA] are administrative in character and do not constitute final appealable orders within the meaning of 28 U.S.C. § 1291.” United States v. Davis, 953 F.2d 1482, 1497 n. 21 (10th Cir.1992). We now join the other circuits that have reached the question and hold that district court CJA fee determinations are not appealable orders. As the Sixth Circuit stated, the CJA does not provide for appellate review of a fee determination; instead, the district court has complete discretion, subject only to minimal review by the chief judge of the circuit. Stone, 53 F.3d at 143. In addition, the non-adversarial nature of the process supports the conclusion that it is an administrative act, as opposed to a judicial decision. Id.; Rodriguez, 833 F.2d at 1537-38; In re Baker, 693 F.2d at 926-27.

Mr. Lunn recognizes the weight of the circuit authority, but argues that his dispute is reviewable because it is analogous to the situation in Davis. In that case, the district court had completely neglected its duty to review the CJA vouchers and forward them for payment, and counsel asked us to order the district court to fulfill its duty to process the interim voucher. After recognizing the general consensus among the circuits that orders concerning CJA fee determinations were not appealable, we stated that the situation then before us was “fundamentally different from claims concerning the amount of payment.” Davis, 953 F.2d at 1497 n. 21. Mr. Lunn argues that, as in Davis, his situation is also fundamentally different from claims concerning the amount of payment. He characterizes the request in Davis as one “not to be denied reasonable payments for [counsel‘s] services by interim payments,” just as he is requesting reasonable payment for his service. Aplt. Br. at 24.

However, Mr. Lunn‘s situation is different than that presented in Davis. The district court in Davis, contrary to the process prescribed by the CJA and the court‘s own order regarding processing of interim vouchers, had taken no action whatsoever on counsel‘s interim vouchers—it had not reviewed the vouchers, authorized compensation, or submitted them to the chief judge for review and approval. What made the Davis situation fundamentally different from a claim concerning the amount of payment was that the district court had not taken action to process the interim vouchers at all. In Mr. Lunn‘s case, the district court fulfilled its administrative duty to review Mr. Lunn‘s voucher and forward it for payment. Notwithstanding Mr. Lunn‘s attempt to characterize his dispute as about the process by which the district court arrived at its conclusion, and regardless of the fact that he disagrees with the district court‘s analysis and conclusions regarding whether the resentencing proceedings were complex and whether exceeding the statutory maximum was necessary for fair compensation under the CJA, it all comes down to the fact that Mr. Lunn disagrees with the amount of the payment.

Mr. Lunn also argues that we have jurisdiction in this case based on the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, (1949). We agree with the Sixth and the Ninth Circuits that the district court decision concerning the amount of CJA fees does not come within the collateral order doctrine for the same reason that it is not an appealable order within the meaning of 28 U.S.C. § 1291—it is a decision that is administrative, not judicial, in nature. See Stone, 53 F.3d at 143; In re Baker, 693 F.2d at 926-27. Just as its administrative nature prevents it from being an appealable order under § 1291, neither is it a judicial, interlocutory order subject to the collateral order doctrine. Stone, 53 F.3d at 143.

Mr. Lunn relies on the decision in United States v. Poland (In re Derickson), 640 F.2d 946, 947-48 (9th Cir.1981), to support his argument that the collateral order doctrine provides a jurisdictional basis for this appeal. That decision, however, does not further Mr. Lunn‘s cause. That case involved an appeal from a district court decision that the district court lacked jurisdiction to consider counsel‘s CJA voucher because the voucher was not submitted for review within the administrative time limit. By its own terms, that case is distinguishable:

This appeal involves the district court‘s determination that it lacked jurisdiction to consider an untimely voucher for attorney‘s fees. We are not called upon to consider whether amounts awarded, methods of computation, or like matters related to attorney‘s fees under the CJA are appealable.

Id. at 948. In fact, in a later Ninth Circuit decision holding that a district court deci-sion approving CJA fees in an amount less than requested by counsel was not appealable, the court noted its decision in In re Derickson as “expressly point[ing] out that we were not called upon to decide whether the certification of an actual amount was appealable.” In re Baker, 693 F.2d at 925-26 & n. 1. In re Derickson presented a different jurisdictional question than is presented here, and the Ninth Circuit has since held that district court orders “establishing the amount of attorneys fees under the [CJA] are not appealable.” In re Baker, 693 F.2d at 926.

The third issue raised by Mr. Lunn is that the compensation authorized by the district court was unreasonable. This claim also goes to the amount of the district court‘s fee determination, and, as such, is not appealable.

The appeal is DISMISSED for lack of jurisdiction.

BRISCOE

CIRCUIT JUDGE

Ron RUSAKIEWICZ and Paul Spera, Plaintiffs-Appellants, v. John LOWE, David Norris, Sr., Shirley Shaw, John P. Wolfe, and the Veterans of Foreign Wars of the United States, Department of California, Defendants-Appellees.

No. 07-4289.

United States Court of Appeals, Tenth Circuit.

Feb. 24, 2009.

Notes

1

Two circuits have reviewed CJA compensation decisions without discussing jurisdiction. See United States v. Turner, 584 F.2d 1389 (8th Cir.1978); United States v. Ketchem, 420 F.2d 901 (4th Cir.1969).

Case Details

Case Name: United States v. French

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 24, 2009

Citation: 556 F.3d 1091

Docket Number: 07-5147

Court Abbreviation: 10th Cir.