No. 74-1904.United States Court of Appeals, District of Columbia Circuit.
October 7, 1976. Rehearing Denied August 18, 1976.
Appeal from the United States District Court for the District of Columbia.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
[1] ORDER
[2] The suggestion of appellants Camenisch, et al. for rehearin en banc having been transmitted to the full Court and there not being a majority of the Judges in regular active service in favor of having this case reheard en banc, it is
[5] ORDER AMENDING ORDER DENYING SUGGESTION FOR REHEARING EN BANC
[6] It appearing that the original order entered herein on August 18, 1976 which denied appellants’ suggestion for rehearing en banc did not reflect the fact that Chief Judge Bazelon was issuing a statement as to the reasons why he would have granted rehearing en banc, it is
[8] STATEMENT OF CHIEF JUDGE BAZELON AS TO WHY HE WOULD GRANT REHEARING EN BANC[9] The administration of criminal justice in the District of Columbia is profoundly implicated in this case, which challenges practices in the Superior Court for the payment of fees to court-appointed counsel. Plaintiffs allege facts which, if substantiated, suggest that indigent defendants are not likely to receive adequate representation because their appointed counsel cannot expect to receive adequate compensation. This case thus carries profound implications not only for the propriety interests of plaintiff attorneys, but also for the right of
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criminal defendants to effective assistance of counsel.[1]
[10] Despite its importance, plaintiffs’ complaint was dismissed in the district court without opinion. Afterwards, a panel of this court affirmed that dismissal under local Rule 8(f), which allows cases to be disposed of by memorandum opinions that are not published. I would grant rehearing en banc to reconsider the panel’s affirmance for the persuasive reasons set forth in Judge McMillan’s dissenting memorandum opinion, which is appended along with the panel majority’s memorandum.[2] I write this statement to bring the important issues of this case into public view.[3]Although the panel states in dicta that “it seems unlikely that there is any statutory or constitutional bar to determination of attorney’s fees by a judge other than the one trying the case,” Memorandum, infra at 1274 n. 1, this statement does not foreclose plaintiffs’ due process claims. Plaintiffs contend that there must be some rational basis for the cutting of their vouchers and that rationality would be promoted by requiring the judge who heard the case also to rule on the attorney’s voucher. Because rationality might also be promoted by requiring the judge who heard the case to describe the attorney’s performance in writing so that another judge might have some sensible basis for disposing of the voucher, see United States v. Thompson, 361 F.Supp. 879, 884 (D.D.C. 1973), I agree with the panel that due process does not require one method over another. I read the panel’s statement to say no more than this.
[16] THE FACTS
[17] Plaintiffs are lawyers who practice in the criminal Superior Courts of the District of Columbia and who between February 1, 1971, and October 4, 1973, represented and may thereafter represent indigent criminal defendants, by appointment of the Superior Court judges of the District of Columbia under the Criminal Justice Act, 18 U.S.C. § 3006A. Congress by that Act established a program and policy to provide representation for indigents charged with criminal offenses, and to provide compensation to the lawyers who represent them. Defendant Greene, Chief Judge of the Superior Court, supervises the program and the other defendants, associate judges, help run it. Plaintiffs sued on behalf of themselves and about nine hundred other lawyers similarly situated.
“. . . shall . . . be compensated at a rate not exceeding $30 per hour for time expended in court or before a United States magistrate and $20 per hour for time reasonably expended out of court, or such other hourly rate, fixed by the Judicial Council of the Circuit, not to exceed the minimum hourly scale established by a bar association for similar services rendered in the district. . .” (Emphasis added.)
* * * * * *
“[T]he court shall fix the compensation and reimbursement to be paid to the attorney . . . .”
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[19] The maximum fee allowable in misdemeanor cases is $400, and the maximum allowable in felony cases is $1,000. [20] It is established practice, custom and usage that the rate for attorneys appointed under the Act is $20 an hour for out of court time and $30 an hour for in-court time. [21] These rates are substantially less than the prevailing rate charged by members of the District of Columbia bar for similar services to non-indigent clients. [22] Each of the plaintiffs was appointed by a Superior Court judge to represent a criminal defendant pursuant to the Act. Each submitted a claim for compensation. Each claim was drastically reduced, and paid in the reduced amount. No notice of nor reason for the reduction was given. No opportunity for a hearing on the reduction was given. [23] The reductions in the eight particular cases alleged in the complaint were:etc.) are processed by a judge in chambers, though not always by the same judge. The chambers fee-fixing assignment is rotated among various judges. [25] The judges who thus sit in chambers pass on a large number of claims for fees in cases with the majority of which they have had no contact until called upon to review the fees claims under the Act. [26] As a result, the decisions of those judges are made without adequate knowledge and are necessarily arbitrary. [27] Defendant Greene has failed to set up regulations to change these practices, to provide notice and hearing, and to establish a uniform administration of compensation under the Act. [28] The practice complained of continues. [29] It undermines the purpose of the Act by placing an economic barrier in front of lawyers performing services under the Act. [30] It deprives indigent defendants of adequately compensated counsel who are economically able to provide thorough representation. [31] The injury is alleged to be irreparable and the remedy at law inadequate. [32] Based on the above facts, plaintiffs say that the fee-cutting actions of defendants (a) constitute a breach of contract and violate the Act; (b) are arbitrary and capricious and thus violate the Fifth Amendment; (c) violate the due process clause of the Fifth Amendment by taking property without notice and opportunity for hearing. [33] They seek money damages from the United States, a declaration of their rights, and equitable relief against the judges to change the way fees are set.
[34] JURISDICTION
[35] The Tucker Act, 28 U.S.C. § 1346(a)(2), provides jurisdiction over
[36] Plaintiffs meet the “not exceeding $10,000” requirement; they have not yet lost and may never lose $10,000. They have rights to compensation under an “Act of Congress,” because 18 U.S.C. § 3006A(d) provides that appointed lawyers “shall . . be compensated . . . .” However, they had no express contracts with the United States for agreed sums of money; § 3006A(d) is not self-executing it depends“Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
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on a judge to determine a dollar amount for the fee; it depends on the Administrative Office to pay the approved amount under § 3006A(j); and when the approved amount is paid, the Administrative Office has no more authority to make any further payment. The Tucker Act is therefore a basis for jurisdiction, but the complaint fails to state a claim against the United States. The claim for money damages against the United States was correctly dismissed.
[37] Against the judges there is jurisdiction for equitable relief under 28 U.S.C. § 1331. The $10,000 minimum amount in controversy requirement is satisfied because, in time, if continued, the extreme fee cuts described in the complaint could well deprive a lawyer who accepted such appointments of more than $10,000 Horton v. Liberty Mutual Insurance Company, 367 U.S. 348, 353, 81 S.Ct. 79, 5 L.Ed.2d 46 (1960); Mississippi and Missouri Railroad v. Ward, 67 U.S. [2 Black] 485, 492, 17 L.Ed. 311(1862); see United States Service Men’s Fund v. Eastland,
159 U.S.App.D.C. 352, 488 F.2d 1252, 1260-61 (1973), rev’d on other grounds, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). The complaint alleges violations of the due process and equal protection guaranties of the Fifth Amendment, and the suit therefore “arises under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331(a). [38] No previous exhaustion of remedies by seeking extraordinary relief in the District of Columbia Court of Appeals should be required. Plaintiffs are not parties to actions pending in Superior Court; there is no recognized avenue of appeal from what happened to them; they are lawyers wronged by an administrative
ruling under a particular statute — not litigants in a Superior Court trial. The District of Columbia Court of Appeals had no statutory jurisdiction over these fee matters; that duty at that time rested on the Superior Court for the District of Columbia under 18 U.S.C. § 3006A. When that court acted unconstitutionally in administrative matters, plaintiffs went to a proper court to assert their constitutional rights, and are rightfully here on appeal.
[39] THE RIGHT VIOLATED
[40] Plaintiffs, however troublesome their contract claim against the United States, had a property right — a reasonable expectation of compensation.
[44] In this setting, it is clear that plaintiffs had a reasonable expectation of compensation in an amount within striking distance at least of the “established practice, custom and usage,” and that they were entitled to due process protections before that expectation was destroyed. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). [45] Their rights were thus violated when, in wholesale fashion, their low but reasonably anticipated fees were slashed to minor fractions of sums claimed, without notice of the proposed cuts and without hearing or opportunity to be heard, by judges uninformed about the cases, the services, the quality and performance of the lawyers, or the results obtained.“It is the established practice, custom and usage that the rate for attorneys appointed under the Act is $20.00 an hour for out-of-court time and $30.00 an hour for in-court time.”
[46] THE ILLUSORY DEFENSES
[47] Much of the time in oral argument of the appeal was taken up by assertions and questions foreign to the facts and the issues they raise.
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[48] For example, it was suggested or implied that arbitrary fee fixing is justified by a shortage of money to pay fees; that lawyers are often called on to do free work and therefore should not complain of sharp fee cuts or no fees at all; that ad hoc reasons may exist for some of the reductions that taking time for informed and rational rather than uninformed and arbitrary fee decisions would over-burden the trial courts; that somewhere, somehow, there must exist a better world in the lower court or in the administrative area, where plaintiffs could conceivably get their constitutional claims recognized; that a new statute, the District of Columbia Criminal Justice Act of September 3, 1974, has somehow worked a change in the situation (or may do so); and that the court, therefore, should do nothing about the unconstitutional practices complained of. [49] The trouble with those contentions is that (except for the judicial notice which the court is entitled to take of any Act of Congress) they are not before this court; there is not a shred of evidence to support them; they are illusory defenses. [50] In the vernacular of Mr. Micawber, they simply ask the court to stay its hand because “something will turn up.” [51] Moreover, the only document cited on behalf of these defenses during the argument strongly supports the position of the plaintiffs. That document, not a part of the record, is the April, 1975, “Report on Criminal Defense Studies in the District of Columbia by the Joint Committee of the Judicial Conference of the District of Columbia Circuit and the District of Columbia Bar (unified).” On August 6, 1975, that report was presented to the Judicial Conference of the District of Columbia Circuit, which[52] That report (pages 33-55) indicates that fee approvals are still handled in essentially the same way described in the complaint in this case — and with the same adverse effects on the constitutional rights of the lawyers and on the quality and availability of defense services. The report makes some recommendations for improvement, but there is no word on what has happened to those recommendations. Lawyers’ recommendations, not adopted by judges, are hardly a substitute for judicial decision.“receives the report . . . with thanks but takes no position with respect thereto.”
[53] CONCLUSION
[54] The case is here because judges acted in haste and without information instead of on facts learned through due process procedures.