A Guide to Administrative Procedures Under the CJA

A Guide to Administrative Procedures Under the CJA

  1. In General. Appointments of counsel under the Criminal Justice Act of 1964 (the Act or CJA) are governed by the Act itself, 18 U.S.C. § 3006A; by the Guidelines for Administration of the Criminal Justice Act (Guidelines), approved by the Judicial Conference of the United States and reprinted in Guide to Judiciary Policies and Procedures, Volume VII (Appointment of Counsel in Criminal Cases), Section A; and this district’s plan for implementation of the Criminal Justice Act. See also Amended Information for Counsel Appointed Under the Criminal Justice Act, W.D. Tex. R. App. F. Representations by appointment in the Fifth Circuit Court of Appeals are governed by that court’s “Plan Under the Criminal Justice Act for Representation on Appeal” (rev. May 6, 1990; as amended). Counsel appointed under the Act should become familiar with all pertinent provisions of these governing documents; copies of them are available for inspection in the office of the Clerk, and the office of the Federal Public Defender.
  2. Procedure for Obtaining Witness Subpoenas. Under Federal Rule of Criminal Procedure 17(b), a defendant who is unable to pay witness fees may apply ex parte to the Court for issuance of a subpoena at government expense. The application must show that “the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.” Id. Counsel appointed under the CJA may make an affidavit of a defense witness’s appearance, pursuant to a court-approved subpoena, which will provide a basis for a Clerk’s certificate authorizing the U.S. marshal to pay witness fees. 28 U.S.C. § 1825; but see 28 U.S.C. § 1922 (1948) (limitation on taxation of witness fees “in the examination of any criminal case” before a U.S. magistrate judge).
  3. Procedure for Obtaining Expert or Other Services. Under subsection (e) of the Act, “[c]ounsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.” 18 U.S.C. § 3006A(e) (emphasis added). The application must show that the person is financially unable to obtain the services, and must show with particularity why they are necessary for adequate representation. To avoid the risk that the Court will disapprove payment for subsection (e) expenses already incurred, counsel should apply for Court authorization of those services in advance.
    1. Payment for Subsection (e) Services Not Exceeding $300 Without Prior Authorization. The court may approve payment for subsection (e) services without prior authorization, upon a showing that the services were “necessary for adequate representation.” 18 U.S.C. § 3006A(e)(2)(A). Except as provided in 18 U.S.C. § 3006A(e)(2)(B), the total cost of services so obtained may not exceed $300 and expenses reasonably incurred.
    2. Conditional Payment for Subsection (e) Services Exceeding $300 Without Prior Authorization. The court may approve payment for subsection (e) services in excess of $300 without prior authorization if it is in the interest of justice, but only “upon the finding that timely procurement of necessary services could not await prior authorization.” 18 U.S.C. § 3006A(e)(2)(B).
    3. Maximum Compensation for Subsection (e) Services. Compensation paid to a person or organization for subsection (e) services may not exceed $1,000 per person covered under the Act, plus reasonable expenses, unless excess compensation is certified by the court and approved by the chief judge of the circuit or the chief judge’s delegate. 18 U.S.C. § 3006A(e)(3).
    4. Capital Cases. Procedures for investigative, expert, or other reasonably necessary services in capital defense and capital habeas corpus are set out in 18 U.S.C. § 848(q)(9)–(10).
    5. Disclosure of Fees. The amounts paid for subsection (e) services “shall be made available to the public.” 18 U.S.C. § 3006A(e)(4).
    6. Prescribed Form. Applications for authorizations of subsection (e) services are made on form CJA 21, Authorization and Voucher for Expert and Other Services, available in the Clerk’s office.
  4. Attorney Compensation Limits.
    1. Per Hour. The Act limits attorney compensation to $60 per hour in court and $40 per hour reasonably expended out of court, unless the Judicial Conference has determined that a higher rate is justified. 18 U.S.C. § 3006A(d)(1). The maximum rates approved for all locations of this district are $65 and $45 per hour.
    2. Per Case. Absent special approval, attorney compensation is further limited by the type of case. Those limits are:
      • $3,500 for each attorney in a case in which one or more felonies are charged;
      • $1,000 for each attorney in a case in which only misdemeanors are charged;
      • $2,500 for each attorney representing a defendant in an appellate court; and
      • $750 for each attorney providing representation in any other matter covered by the Act.

      18 U.S.C. § 3006A(d)(2). The statutory reference to “each attorney” should not be read to apply in cases of substitution of counsel. The limitations apply to each attorney “[i]n difficult cases in which the court finds it necessary to appoint more than one attorney . . . .” Guidelines, para. 2.22(B)(1)(iii). “If a case is disposed of at an offense level lower than the offense originally charged, the compensation maximum is determined by the higher offense level.” Guidelines, para. 2.22(B)(1)(ii), at 16. The limits applicable to a federal capital case or a death-penalty federal habeas corpus case are governed by 21 U.S.C. § 848(q)(10) and Guidelines, para. 6.02, at 4.

    3. Payment in Excess of Per-Case Limits. Payment in excess of the per-case limits may be made, but only for “extended or complex representation” if (1) the Court “certifies that the amount of the excess payment is necessary to provide fair compensation,” and (2) “the payment is approved by the chief judge of the circuit” or the chief judge’s delegate. 18 U.S.C. § 3006A(d)(3). Suggested criteria for reviewing claims in excess of the per-case limits are provided in Guidelines, para. 2.22(B)(3), at 19. Because of the requirement for circuit-level review, claims for compensation in excess of per-case limits take more time for processing.
  5. Procedure for Claiming Attorney Compensation. An attorney claiming compensation under the Act shall file a separate claim for each representation, “specifying the time expended, services rendered, and expenses incurred . . . and the compensation and reimbursement applied for or received in the same case from any other source.” 18 U.S.C. § 3006A(d)(5). “No appointed attorney shall accept a payment from or on behalf of the person represented without authorization by a United States district or circuit judge or magistrate on CJA Form 7.” Guidelines, para. 2.22(E), at 20. Any payment so approved “shall be deducted from the fee to be approved by the court under subsection (d) of the Act.” Id.
  6. Reimbursable Out-of-Pocket Expenses. Reasonably incurred out-of-pocket expenses, such as telephone toll calls and copying, may be reimbursed if they are itemized and reasonably documented on the voucher. (Costs of subsection (e) services must be claimed as such, and not as out-of-pocket expenses.) Guidelines, para. 2.27, at 22. “Claims for expenses over $5.00 should be itemized.” W.D. Tex. R. App. F(V). Any necessary transcripts should be requested from the court on form CJA 24, Authorization and Voucher for Payment of Transcript, but an attorney may pay out-of-pocket for court-authorized transcripts and claim reimbursement on the same form. Id. Travel by private automobile may be claimed at the rate prescribed for federal judiciary employees (currently 31 cents per mile), and reasonable costs of other modes of transportation may be claimed on an actual-expense basis. Id. at 23. When they are necessary to the representation, actual and reasonable travel costs for meals and lodging in connection with overnight travel may be claimed, and attorneys may be guided as to what actual expense is “reasonable” by consulting current regulations applicable to federal judiciary employees, available in the Clerk’s office. Id. The cost of computer-assisted legal research may be reimbursable, under criteria set out in Guidelines, para. 2.31(B), at 26.
  7. Non-Reimbursable Items. Reimbursement is not allowed for general office overhead, items and services of a personal nature, filing fees (which should not be charged to a person proceeding under the Act), printing of briefs, or service of process (which is governed by Federal Rule of Criminal Procedure 17(b) and 28 U.S.C. § 1825). Guidelines, para. 2.28, at 24.
  8. Interim Payments and Reimbursement. Upon a finding that it is necessary and appropriate, the court may arrange for periodic or interim payments to counsel. Guidelines, para. 2.30, at 25; Appendix E. Upon the same finding, the court may arrange for interim reimbursement of “extraordinary and substantial” expenses. Id., para. 2.27(C), at 23.
  9. Prescribed Form; Time for Filing. Claims for compensation and reimbursement are made on form CJA 20, Appointment of and Authority to Pay Court Appointed Counsel, available in the Clerk’s office. Vouchers should be submitted to the Clerk as soon as possible after completion of services, and must be submitted within 45 days after final disposition of the case, unless good cause for later submission is shown. Guidelines, para. 2.21, at 12.
  10. Record Keeping. “Appointed counsel must maintain contemporaneous time and attendance records for all work performed, including work performed by associates, partners, and support staff, as well as expense records. Such records, which may be subject to audit, must be retained for three years after approval of the final voucher for an appointment.” Guidelines, para. 2.32, at 27.
  11. Disclosure of Fees. Subject to certain conditions, the amounts paid under 18 U.S.C. § 3006A(d) for representation in any case shall be made available to the public upon the court’s approval of the payment. 18 U.S.C. § 3006A(d)(4), as amended by Pub. L. No. 105-119, § 308, 111 Stat. 2440, 2493–94 (Nov. 26, 1997) (see Appendix).
  12. Further Assistance. Attorneys appointed under the CJA who require further assistance in complying with Criminal Justice Act procedures should contact the Clerk’s office or the Federal Public Defender’s office.