Simmons v. Lockhart
| Decision Date | 15 May 1991 |
| Docket Number | No. 86-1177,86-1177 |
| Citation | 931 F.2d 1226 |
| Parties | Thomas Winford SIMMONS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jim H. Birch, Little Rock, Ark., for appellant.
Jack Gillean, Little Rock, Ark., for appellee.
Jim Hunter Birch has applied for attorneys' fees. Mr. Birch was appointed by this Court to represent Thomas Winford Simmons, an indigent federal habeas petitioner who was a death-row inmate in Arkansas. For almost two years Birch discharged his duties as appointed counsel faithfully and effectively. See Simmons v. Lockhart, 856 F.2d 1144 (8th Cir.1988); Simmons v. Lockhart, 915 F.2d 372 (8th Cir.1990). Birch's fee request includes time spent before and after November 18, 1988. That is the critical fact in this case, because November 18, 1988, is the effective date of a new statute which guides the federal courts in awarding attorneys' fees and expenses in capital cases.
The Anti-Drug Abuse Act of 1988 allows the federal courts to award attorneys' fees and various expenses "at such rates or amounts as the court determines to be reasonably necessary" to effective representation in capital cases. 21 U.S.C. Sec. 848(q)(10). The old law, the Criminal Justice Act of 1984, fixed hourly rates and a statutory maximum of $2,500 (waivable in certain circumstances), as well as allowing reimbursement for certain "expenses reasonably incurred" in certain federal criminal cases, including capital cases. 18 U.S.C. Sec. 3006A(d). One of the questions that must be decided in this case is what legal difference it makes that Birch's request straddles these two statutes.
After some hesitation, I have decided to handle this matter, at least in the first instance, as a single circuit judge, rather than referring it to the panel. The Anti-Drug Abuse Act states that fee matters are to be handled by "the court," but fee awards under the Criminal Justice Act have, by long custom, been referred to and decided by the judge who wrote the opinion in the particular case. 1 We have continued this practice under the new law. It makes some sense to adhere to this custom, since the writing judge necessarily will be more familiar with the details of lawyers' efforts. Accordingly, I am deciding this matter as a single judge, subject, however, to review in the manner I shall describe later in this opinion.
Birch urges that the new statute be applied retroactively, thus avoiding the old statutory limitations. Alternatively, he asks that the statutory maximum be waived for that part of his request governed by the Criminal Justice Act. I hold that Congress did not intend the new attorneys' fee provisions of the Anti-Drug Abuse Act to apply retroactively. Birch's request, then, must be treated in effect as two requests: one for his efforts up to November 18, 1988, governed by the Criminal Justice Act, and one for his efforts on and after that date, governed by the new statute. 2
The details of Simmons's case are not relevant to this petition, except in one respect. Simmons's habeas petition presented complicated questions involving the tangled jurisprudence of procedural default. We appointed Birch after Simmons's petition had already been rejected once by our Court. 814 F.2d 504 (8th Cir.1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988). He secured a stay of execution, and pressed a motion asking us to recall our mandate. We ultimately denied the motion, which we treated as a successive habeas petition, but the points raised were far from frivolous. The issues were difficult at best, and Birch, with the help of others in the Rose Law Firm, handled them well. The particulars of those legal questions, as well as the facts of Simmons's crimes, are set out in our previous opinions on Simmons's petition. Birch's fee request comes now because the case is at an end: Thomas Simmons took his own life on December 31, 1990.
The details of Birch's request are these
InCourt Time--12 hours x $115/hour ......... $ 1,380.00
Out-of Court Time--352.3 hours x $115/hour .. $ 40,514.50
Travel Expenses ............................. $ 168.70
Computer Research ........................... $ 4,257.23
Photocopies ................................. $ 2,115.71
Air Courier ................................. $ 48.15
Postage ..................................... $ 5.45
Long Distance Telephone ..................... $ 66.35
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Birch Total ...... $ 48,556.09
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As this summary makes apparent, Birch asks for $115.00 an hour for all his time on this case. This of course exceeds the Criminal Justice Act's hourly rate ceilings. That Act allows up to only $40.00 an hour for out-of-court time, and up to $60.00 an hour for in-court time. 18 U.S.C. Sec. 3006A(d)(1). The Anti-Drug Abuse Act, by contrast, requires only that the eventual award be a reasonable one. 21 U.S.C. Sec. 848(q)(10).
Birch also requests that the following people--other lawyers, law clerks, and paralegals--associated with his law firm be paid (at various rates) for the time they spent on this case:
D. Thomas--130.20 hours x $115/hour ................... $ 14,973.00
J. Druff--175.30 hours x $85/hour ..................... $ 14,900.50
E. Cunningham--47.20 hours x $75/hour ................. $ 3,540.00
M. Booker--6.50 hours x $80/hour ...................... $ 520.00
T. New--37.70 hours x $30/hour ........................ $ 1,131.00
M. Peoples--26.65 hours x $30/hour .................... $ 799.50
A. Young--12.20 hours x $30/hour ...................... $ 366.00
A. Cato--8.00 hours x $40/hour ........................ $ 320.00
L. Buchman--5.40 hours x $40/hour ..................... $ 216.00
R. Jones--3.45 hours x $40/hour ....................... $ 138.00
M. Marsh--4.00 hours x $30/hour ....................... $ 120.00
R. Mills--3.25 hours x $30/hour ....................... $ 97.50
K. Kissell--2.40 hours x $40/hour ..................... $ 96.00
C. Hannah--3.00 hours x $30/hour ...................... $ 90.00
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Other Lawyers, Law Clerks, and Paralegals Total .. $ 37,307.50
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With a few exceptions, all of this time was spent on out-of-court work, mostly legal research and factual investigations. In addition, Birch seeks $77.10 in additional travel expenses for David Thomas, another lawyer who accompanied Birch to St. Louis when he presented his oral argument to our Court.
There is no doubt that all the time requested by Birch, for himself and others, was spent on this case. Moreover, the time was well spent. The questions, rather, are: what is the proper hourly rate for this time, and can these additional individuals be paid for their efforts and expenses?
Beneath the question of the proper hourly rate lies the disputed retroactive application of the Anti-Drug Abuse Act of 1988. The words of the Act express no intention of retroactive application. Nor does the legislative history of the Act carry the argument any further. No committee reports explain this part of the Act. We are aware of no floor debates that might reveal at least the views of individual legislators about retroactive application. But there is relevant precedent. The last time this Court was faced with a similar situation we came to a conclusion against retroactivity. When the Criminal Justice Act of 1964 first created the possibility of receiving attorneys' fees in federal cases, we declined to apply the statute to that part of a request concerning time spent before the effective date of the new law. See Ray v. United States, 367 F.2d 258 (8th Cir.1966) (Lay, J.), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); United States v. Pope,
Birch cites two cases in support of the proposition that we should enforce the new Act retrospectively: Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), and Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Hutto is distinguishable. In that case the Supreme Court found explicit legislative indication that retroactive effect was intended. Hutto, 437 U.S. at 694-95 n. 23, 98 S.Ct. at 2575-76 n. 23. Bradley, however, is closer to this case. There the Court held that a statute enacted while the appeal in a case was pending, providing for an award of attorneys' fees in like cases, should be applied in that appeal. The Bradley Court "reject[ed] the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature." 416 U.S. at 715, 94 S.Ct. at 2018 (footnote omitted). Instead, a court is bound, with some exceptions, to apply the law in effect at the
time of its decision. The two exceptions to the Bradley presumption of retroactive effect are: if manifest injustice to one of the parties would result, or if Congress clearly intends otherwise. Id. at 711, 94 S.Ct. at 2016.
If that were the end of the story, Birch might well prevail on Bradley's rationale. More, however, has been said. In Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), the Court recently reaffirmed the traditional rule that Id. at 208, 109 S.Ct. at 471. Our cases have noted the irreconcilable conflict in the Court's directions on this point. See Criger v. Becton, 902 F.2d 1348, 1353-54 (8th Cir.1990). The Supreme Court, in Kaiser Aluminum & Chemical Corp. v. Bonjorno, --- U.S. ----, 110 S.Ct. 1570...
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