Rosenfield v. Wilkins

• Decision Date: 18 October 2006
• Docket Number: No. CIVA 305-CV-00072.,CIVA 305-CV-00072.
• Citation: 468 F.Supp.2d 806
• Court: U.S. District Court — Western District of Virginia
• Parties: Steven ROSENFIELD, and Edward M. Wayland, Plaintiffs, v. The Honorable William W. WILKINS, acting in his official capacity as Chief Judge of the United States Court of Appeals for the Fourth Circuit, Defendant.

468 F.Supp.2d 806

Steven ROSENFIELD, and Edward M. Wayland, Plaintiffs, v. The Honorable William W. WILKINS, acting in his official capacity as Chief Judge of the United States Court of Appeals for the Fourth Circuit, Defendant.

No. CIVA 305-CV-00072.

United States District Court, W.D. Virginia, Charlottesville Division.

October 18, 2006.

Edward McCoy Wayland, Attorney at Law, Montgomery, AL, Steven David Rosenfield, Rosenfield & Wayland, Charlottesville, VA, Victor M. Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, Rebecca Kim Glenberg, ACLU of Virginia, Richmond, VA, for Plaintiffs.

Thomas L. Eckert, United States Attorneys Office, Roanoke, VA, for Defendant.

OPINION AND ORDER

LOKEN, Chief Judge.

This is a putative class action filed by Virginia attorneys Steven Rosenfield and Edward M. Wayland against William W. Wilkins in his official capacity as Chief Judge of the United States Court of Appeals for the Fourth Circuit. Plaintiffs allege that the Fourth Circuit's procedures for compensating attorneys appointed to represent indigent criminal defendants under the Criminal Justice Act ("CJA") violate class members' Fifth Amendment right to procedural due process because requests for compensation are reduced or denied without (1) an explanation of why the request was not paid in full, (2) advance notice of what work would and would not be compensated, and (3) full and fair opportunity to challenge an adverse fee award. Before the undersigned ate a number of pretrial motions. For the following reasons, I deny plaintiffs' Motion for Recusal and grant defendant's Motion To Dismiss. Dismissal renders the remaining motions moot.

I. Background

First enacted in 1964, the CJA requires that each federal district court, with the approval of the circuit judicial council, adopt "a plan for furnishing representation for any person financially unable to obtain adequate representation in accordance with this section." 18 U.S.C. § 3006A(a). The Fourth Circuit and other courts of appeals have adopted plans to implement the CJA. The CJA includes detailed provisions for the appointment and compensation of attorneys and experts to represent indigent defendants, and for the creation of Federal Public Defender organizations. In 1988, Congress amended the continuing criminal enterprise statute to provide for the appointment and compensation of attorneys and experts to represent indigent defendants in capital cases. See 21 U.S.C. § 848(q)(4)-(10).¹ Plaintiffs treat these provisions as being substantively a part of the CJA. I agree.

Plaintiffs' Amended Complaint alleges that named plaintiff Rosenfield was appointed under 18 U.S.C. § 3006A and 21 U.S.C. § 848(q) to, represent an indigent inmate on Virginia's death row in federal habeas corpus appeals to the Fourth Circuit and to the Supreme Court of the United States, and in a clemency petition to the Governor of Virginia. Plaintiff Wayland was Rosenfield's partner and worked on the case as well. When these legal proceedings concluded, Rosenfield submitted vouchers requesting compensation of $35,456.25 for "time reasonably expended"' working on the case, based upon $125 per hour, the statutory maximum rate for work on capital cases at that time. See 21 U.S.C. § 848(q)(10)(A). Defendant Wilkins', "acting in an administrative capacity as Chief Judge of the Fourth Circuit," approved payment of only $10,000. Rosenfield moved for reconsideration and then petitioned for en banc administrative review. Both requests were denied without explanation.

The Amended Complaint alleges that the Fourth Circuit has no published standards governing fee awards, no rules or procedures for seeking review of the chief judge's decisions, and provides "no fair or full opportunity" to seek review of those administrative decisions. Asserting that Bivens v. Six Unknown famed Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), gives this court jurisdiction to remedy these circuit court procedural due process violations, the Amended Complaint prays for sweeping declaratory and injunctive relief establishing and enforcing Fourth Circuit standards "for evaluating requests for compensation for fees and expenses under the CJA," and directing Chief Judge Wilkins to reconsider all requests submitted by class members since December 2, 2003.

II. The Motion for Recusal

The district judge initially assigned to this case recused, declining to invoke the "Rule of Necessity" discussed in United States v. Wig 449 U.S. 200, 213-17, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980), because a "reasonable observer would not question the impartiality of all Article III judges," as opposed to all Fourth Circuit district judges. Rosenfield v. Wilkins, No. 3:05-CV-00072, at 4 (W.D.Va. Feb. 13, 2006) (recusal order). I was then asked by the Chairman of the Judicial Conference Committee on Intercircuit Assignments if I would accept an intercircuit designation and assignment. I agreed (without reviewing the pleadings), and the Chief Justice designated and assigned me to act as a circuit judge in the Fourth Circuit for this purpose. See 28 U.S.C. § 291.

After defendant's Motion To Dismiss was fully briefed, plaintiffs filed a motion asking me to recuse. While no bias is alleged, plaintiffs assert that my impartiality "might reasonably be questioned," 28 U.S.C. § 455(a), because (i) as a chief circuit judge and member of the Judicial Conference, I am "personally involved in policy-making and administrative practices relating to attorney compensation under the CJA," and (ii) I have made CJA compensation decisions under an Eighth Circuit plan that is procedurally similar to the Fourth Circuit's plan and therefore I have an "institutional interest" that should preclude me from judging this case.

This motion puts the Rule of Necessity directly in play. Under the CJA, virtually every federal judge exercises primary fee-determining authority. "When representation is provided in the district court, the judge presiding over the proceeding fixes the fees." United States v. Smith, 633 F.2d 739, 740 (7th Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981). When representation is provided in the Eighth Circuit, for example, fee requests are determined by the circuit judge who authored the opinion, with input from the other members of the panel. I become involved" as chief circuit judge only in non-capital cases when the panel certifies a fee in excess of the statutory maximum, because in that circumstance the statute requires my additional approval. See 18 U.S.C. § 3006A(d)(3).² The Seventh Circuit follows the same practice. United States v. D'Andrea, 612 F.2d 1386, 1387 (7th Cir.1980). Thus, every Article III judge shares my "institutional interest" in the statutory regime we are required to implement.

The remainder of plaintiffs' argument is, at bottom, an attack on the Committee on Intercircuit Assignments for designating and assigning a chief circuit judge to this case. Plaintiffs apparently believe that chief circuit judges cannot be impartial because we have too much knowledge and experience with the subject matter of their complaint. Without question, I have had greater CJA responsibilities since becoming a chief circuit judge on April 1, 2003. But I was not "personally involved" in formulating the CJA plans and procedures now being implemented by the courts of the Eighth Circuit. Section 455(a) sets forth an objective standard—whether impartiality might reasonably be questioned. See Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Allegations of partiality based upon "a judge's prior participation, in a judicial capacity, in some related litigation . . . are meritless in most instances." Id. at 561, 114 S.Ct. 1147 (Kennedy, J., concurring). Whether my CJA decisions are administrative or judicial in nature, the allegation of partiality based on these responsibilities is without merit. The Motion for Recusal is denied.

III. The Motion To Dismiss

Defendant Wilkins moves to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted. See Fed.R.Civ.P. 12(b)(1), 12(b)(6). His supporting Memorandum of Law first argues that this court lacks jurisdiction to review fee decisions of the Court of Appeals, and that he is entitled to absolute judicial immunity from this, suit. These are serious issues, but I decline to consider them because I agree with the additional contention that plaintiffs have failed to state a claim under Bivens.

In Bivens, the Supreme Court held that private citizens have a federal cause of action for damages against federal agents who violate Fourth Amendment rights. While not limiting Bivens to Fourth Amendment claims, the Court in later cases has declined to extend this non-statutory remedy when it infers that Congress has spoken to the contrary. For example, in Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Court held that the elaborate and comprehensive statutory remedies available under the civil service system precluded a Bivens damage action by a federal employee who was allegedly disciplined for exercising First Amendment rights. In Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), the Court held that Social Security claimants may not sue government officials under Bivens for alleged due process violations in denying or delaying benefits. The Court explained that the "special factors" precluding a Bivens action include the existence of a statutory remedy, even if it provides incomplete relief, or "indications that congressional inaction has not been inadvertent." Chilicky, 487 U.S. at 423, 108 S.Ct. 2460. "Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition, who...