U.S. v. Smith

• Citation: 76 F.Supp.2d 767
• Decision Date: 06 December 1999
• Docket Number: No. Crim.A. G-99-5.,Crim.A. G-99-5.
• Parties: UNITED STATES v. Elijah Oneal SMITH.
• Court: U.S. District Court — Southern District of Texas

76 F.Supp.2d 767

UNITED STATES v. Elijah Oneal SMITH.

No. Crim.A. G-99-5.

United States District Court, S.D. Texas, Galveston Division.

December 6, 1999.

Jerome Godinich, Jr., Attorney at Law, Houston, TX, defendant.

Richard Harris, Office of U.S. Atty., Houston, TX, for U.S.

ORDER DENYING REIMBURSEMENT UNDER § 3006A(d) OF THE CRIMINAL JUSTICE ACT

KENT, District Judge.

Jerome Godinich, Jr., as Court appointed counsel, represented Defendant Elijah Smith in Smith's criminal trial. Upon termination of the representation, Godinich submitted a voucher requesting fees and travel expenses pursuant to the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(d). For reasons explained more fully below, the Court refuses to authorize the full amount requested by Godinich.

I. Factual Background

Jerome Godinich, Jr., a Houston based attorney, indicated his willingness to serve as court appointed counsel in criminal matters by placing his name on a list maintained by the Court for such purposes. Godinich represented Defendant Elijah Smith in Smith's trial for possessing, with intent to distribute, more than five grams of cocaine base. After Smith's conviction and sentencing, Attorney Godinich submitted Voucher No. 0886234, seeking fees and travel expenses pursuant to the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(d).

The grand total on the voucher as originally submitted was $1397.50. Godinich claimed 16.5 hours for out-of-court travel time, as well as 800 miles, at $.30/mile, for travel expenses. As reflected on the voucher, the claimed travel time and mileage expense was largely due to Godinich's decision to travel back and forth between Houston and the Galveston City Jail, where Mr. Smith was incarcerated. The Court was unpersuaded that such face-to-face client conferences were truly necessary or reasonable, and so reduced the out-of-court travel time to 6.3 hours, and adjusted the claimed mileage downwards to 300 miles. These changes resulted in an adjusted grand total of $1283.50, a reduction of slightly more than eight percent. Informed of the Court's decision to reduce his claimed expenses, Godinich sent a letter on the following day asking the Court to reconsider. The Court has given the matter careful attention, and declines to disturb its original decision.

II. Duty to Safeguard Taxpayer Funds

When a court appointed defense attorney submits a voucher requesting compensation and reimbursement for expenses pursuant to the Criminal Justice Act ("CJA"), that attorney is making a direct claim upon the limited resources of the U.S. Treasury. The Court is firmly convinced that it has an inherent obligation to scrutinize these requests, make necessary adjustments, and thus safeguard these taxpayer provided funds. The Court takes this obligation seriously, for without close scrutiny, there is little to prevent the dissipation of taxpayer money on unreasonable or downright frivolous activities by court appointed defense counsel.

The Court emphatically rejects the suggestion that it must simply rubber-stamp a voucher in whatever amount a defense attorney has the audacity to request. It is true that the CJA provides that "the appointed attorney shall, at the conclusion of the representation" be paid a set rate. 18 U.S.C. § 3006A(d)(1) (emphasis added). But despite the presence of the word "shall," the statute cannot reasonably be read to foreclose the exercise of judicial oversight. This is so because the statute also expressly provides that an attorney will be compensated at the rate of $40 per hour "for time reasonably expended out of court" and shall be reimbursed for "expenses reasonably incurred." Id. (emphasis added). Section 3006A(d)(5) provides that a "claim for compensation and reimbursement shall be made to the district court" and the "court shall fix the compensation and reimbursement to be paid to the attorney." Thus the district court, as the body empowered to "fix" compensation, clearly has the power to determine what is a reasonable expense or a reasonable use of billable time. See United States v. Self, 818 F.Supp. 1442, 1446 (D.Utah 1992) (reaching similar conclusion); United States v. Cook, 628 F.Supp. 38, 41 (D.Colo.1985) (examining claim for time and expenses "in light of the standard of reasonability.").

Section 3006A(d)(4)(C)(i) provides that if "a request is not submitted until after the completion of the trial ... the court shall make available to the public an unredacted copy of the expense voucher." Thus the fact that Congress elected to cast the disinfecting sunshine of public scrutiny upon such fee requests supports the conclusion that Congress intended for there to be meaningful oversight over CJA vouchers.

While this Court has an inherent obligation to act as a trustee of public funds, appointed defense attorneys have a correlative obligation, namely, to fulfill their time-honored commitment, as officers of the court, to provide a minimal amount of pro bono services to indigent clients. Accepting work as a court appointed attorney under the CJA "is tantamount to acceptance of public service." Cook, 628 F.Supp. at 41. "Such appointments are to protect the rights of the indigent accused, and they are neither to be sought nor made for the purpose of providing income to attorneys." Id. The purpose of the Act "is not to provide compensation such as would be charged non-indigent clients under private retainers, but to `take the sting' out of the practice formerly obtaining of requiring members of the Bar to represent indigent defendants without pay and without reimbursement for necessary expenses." United States v. James, 301 F.Supp. 107, 127 (W.D.Tex.1969); see also United States v. Smith, 633 F.2d 739, 741 (7th Cir.1980) (noting that "[t]he Criminal Justice Act is in no way an attorney's fullemployment act," and expressing little sympathy for those attorneys "who look upon the Criminal Justice Act as a profit center"); Self, 818 F.Supp. at 1442 (rejecting a fraction of the claimed time and expenses as "unreasonable" and thus not authorized under the CJA).

The Court concludes that the time and expenses Godinich expended to engage in face-to-face meetings with his client in the Galveston City Jail are not "reasonable" expenses, and thus not compensable under the CJA. In the first place, a Houston based lawyer who places his name on a Galveston court's appointed counsel list should foresee the possibility of some unreimbursed travel expenses. Non-local counsel should hardly expect that every second of their travel time, and every penny of their travel expenses, will be paid for by the American taxpayer.

Second, it is not always reasonable to conduct multiple face-to-face meetings with a distant client, especially if the expense is being borne by others. The Court is sympathetic to the plight of a jailed defendant who seeks reassurance and solace from his attorney, and the Court also recognizes that an occasional visit to a client incarcerated in a remote facility may be a reasonable use of time and money. But not every face-to-face meeting is justifiable simply because the client is distraught and upset in a faraway jail cell. Many routine matters can be handled more expeditiously and economically by the intelligent use of the telephone.

Third, in this day of cell phones, car phones, mobile fax machines, portable laptops, and other marvels of technology, travel time need no longer be unproductive "dead time." An attorney can be productively engaged doing the work of other clients while traveling, and consequently has no right to expect that his fellow taxpayers should automatically pay for time only nominally expended on behalf on an indigent client.

The Court does not want to leave the impression that Mr. Godinich's exertions were frivolous, or that his request for reimbursement was made in bad faith. The Court is simply concluding that a portion of his claimed expenses were not "reasonable" for purposes of CJA reimbursement, which necessitates an eight percent downward adjustment. No doubt Mr. Godinich's efforts on his client's behalf were entirely commendable. What is commendable, however, is not necessarily compensable.

III. Appellate Review of Attorney Fees Under § 3006A(d)

The Court's recognition that it has an inherent obligation to scrutinize requests by attorneys for reimbursement under the CJA is further strengthened by its conclusion that there is no appellate review of its administrative decisions in this regard. Thus if this Court shirks its responsibility to safeguard taxpayer funds, there is no other body capable of performing that crucial oversight function.

A. Circuit Court Precedent

The Second, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and Federal Circuits have all squarely held that district court determinations of attorney fees pursuant to § 3006A(d) of the CJA are administrative decisions, not judicial ones, and thus are not "final decisions" for purposes of supporting appellate jurisdiction under 28 U.S.C. § 1291. See United States v. Bloomer, 150 F.3d 146, 148 (2nd Cir.1998) (fee determinations, under § 3006A(d), for services previously rendered are not appealable final orders); Landano v. Rafferty, 859 F.2d 301, 302 (3rd Cir.1988) (district court decision denying request for retroactive appointment of counsel and waiver of maximum allowable fee under CJA is not an appealable final order under 28 U.S.C. § 1291); United States v. Stone, 53 F.3d 141, 142 (6th Cir.1995) (trial court's decision to reduce attorney compensation from $47,077.36 to $33,693.80 is neither an appealable final judgment nor an appealable "collateral order"); Smith, 633 F.2d at 741 (decision disallowing fees in excess of statutory maximum not reviewable on appeal); United States v. Walton, 693 F.2d 925, 927 (9th Cir.1982) (trial court's reduction of fees from $57,468.86 to $35,565.86 is an administrative act, not a § 1291 final order, hence no appeal will lie); United States v....