UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL EDWARD HOOPER, Plaintiff,

v. JUSTIN JONES, Director DOC; RANDALL WORKMAN, Warden; DOES, Unknown Executioners, Defendants, and JAMES ALEXANDER DRUMMOND, Attorney-Appellant. No. 13-6048 (D.C. No. 5:12-CV-00758-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TYMKOVICH , ANDERSON , and MATHESON , Circuit Judges.
James Alexander Drummond, attorney for the now-deceased plaintiff Michael Edward Hooper, appeals from a decision of th e district court refu sing to compensate

* After examining appellant’s brief and the appellate record, this panel has determined unanimously to grant appellant ’s request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted wi thout oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case , res judicata, and collateral estoppel. It may be cited, however, for its persua sive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 4, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - him under the Criminal Justi ce Act (CJA), 18 U.S.C. § 35 99, for work performed in connection with an unsuccessf ul challenge to Hooper’s ex ecution by lethal injection. For the reasons explained below, we exerci se jurisdiction under 28 U.S.C. § 1291, and reverse. I. PROCEDURAL BACKGROUND Mr. Drummond was appointed under § 3599(a)(2) to represent Mr. Hooper in habeas proceedings challenging his death se ntence. That effo rt ultimately was unsuccessful, see Hooper v. Workman , No. Civ-07-515-M, 2011 WL 1935815 (W.D. Okla. May 20, 2011), cert. of appealability denied and appeal dismissed , 446 F. App’x 88 (10th Cir. 2011), cert. denied , 132 S. Ct. 2721 (2012 ), and Mr. Hooper sought to challenge the method of execution by lethal injection. The district court granted a supplementa l litigation budget for this purpose in connection with Mr. Drumm ond’s existing CJA appointmen t. After working for some time on the matter under the auspic es of his habeas appointment, Mr. Drummond filed a separate action under 42 U.S.C. § 1983 seeking to enjoin use of the contemplated lethal injection protoc ol—a course approved by the Supreme Court
in Hill v. McDonough , 547 U.S. 573, 579-83 (2006). Shor tly thereafter, district court personnel informed Mr. Drummond by phon e that CJA compensation would not be available for his work on the § 1983 action. At that point, given the pressure of time and the seriousness of the case, he simply continued his effort s on Mr. Hooper’s behalf notwithstanding that communication.- 3 - With the scheduled execution date appr oaching, Mr. Drummond filed a motion for a preliminary injunction to stay Mr. Hooper’s execution. The district court denied the motion and an immedi ate appeal was taken. This court affirmed the denial of the preliminary injunction and the S upreme Court refused further review. See Hooper v. Jones , 491 F. App’x 92 8 (10th Cir.), cert. denied , 133 S. Ct. 89 (2012). As Mr. Drummond now emphasizes, this c ourt appointed and compensated him under the CJA for his representation of Mr. Hoop er in those appellate proceedings. On August 14, 2012, Mr. Ho oper was executed. In the district court, Mr. Drummond was compensated for work done in connection with his CJA appointment for the habeas proceedings—including his preliminary work in anticipation of the lethal inje ction challenge—but not for any time spent in the § 1983 action. He filed a motion for reconsideration of the matter, which the district court denied solely on th e ground that § 1983 ac tions are not within the purview of the CJA. II. APPELLATE JURISDICTION This case requires us to re solve an issue of appellate jurisdiction that has split the circuits that have addr essed it---are there any circum stances (and, in particular, those presented here) in whic h CJA counsel can appeal th e denial of a compensation request? Two lines of author ity help illustrate the legal framework and why we think the answer is yes. The first sets forth the general ru le that a court’s ad hoc review and approval, reduction, or denial of a CJA fee voucher is a mere “administrative- 4 - act,” not a “judicial decision” appealable under § 1291. United States v. French , 556 F.3d 1091, 1093 (10th Cir. 2009) (joining six other circ uits disclaiming appellate jurisdiction when appeal merely ch allenges amount of CJA fee awarded); see also Rojem v. Workman , 655 F.3d 1199, 1201-02 ( 10th Cir. 2011) (following French ). 1 The second line of authority is founded on Harbison v. Bell , 129 S. Ct. 1481, 1485 (2009). There, the Supreme Court he ld an order that “denies a motion to enlarge the authority of appointed counsel (or that denies a motion for appointment of counsel)” is “clearly an appealable order under 28 U.S.C. § 1291.” Obviously the denial of a motion to enlarge the authority of appointed counsel can have direct consequences with respect to the amount of CJA compensation, but that does not render it non-appealable. The procedural facts of this case share features of bot h lines of authority. As
in French , the district court merely reduced c ounsel’s request for compensation under the CJA. On the other hand, the basi s for the reduction was not an ad hoc administrative judgment about the appropriate size of counsel’s f ee but rather, as in Harbison , a decision regarding the proper reach of appointed counsel’s authority under the CJA statute. Two circuits have expressly addressed similar determinations and come to opposite conclusions. The Fifth Circuit has held that such a de termination is the

1 The inapplicability of § 1291 is juri sdictionally dispositiv e, because the CJA does not contain an independent gran t of appellate jurisdiction.- 5 - functional equivalent of an appointment or enlargement-of-appointment order and hence an appealable decision. Clark v. Johnson , 278 F.3d 459, 460-61 (5th Cir. 2002); see also Kelly v. Quarterman , 296 F. App’x 381, 382 & n.2 (5th Cir. 2008). 2 The Eleventh Circuit has held in a spli t opinion that such a determination is materially indistinguishable from a r un-of-the-mill fee reduction and hence a non-appealable administrative act. Gary v. Warden , 686 F.3d 1261, 1269-71 & n.21 (11th Cir. 2012) , cert. denied , 133 S. Ct. 1734 (2013); cf. id. at 1281-85 (Wilson, J., dissenting). We conclude th at appellate review is ava ilable in these circumstances. 3 The decision whether to compensate c ounsel here involves interpreting and applying the provisions in § 3599 governing the aut horized scope of a CJA appointment—in this case whet her it encompasses represen tation of a capital habeas petitioner in related § 1983 proceedings challenging the execution of his death sentence. The interpretation and application of statutor y directives is the very essence of district court de cision-making routinely review able under § 1291; it is a

2 Clark was decided under 18 U.S.C. § 848(q) , the predecessor to § 3599; noting that the two versions c ontained essentially the same relevant language, Kelly applied Clark ’s jurisdictional holding to a case involving § 3559.
3 We note that our circuit exercised ju risdiction to review a CJA determination of the sort involved here in Hain v. Mullin , 436 F.3d 1168 (10th Cir. 2006) (en banc) (reviewing denial of CJA comp ensation on basis that repres entation in state clemency proceeding fell outside scope of counsel’s statut ory authorization). But because we never mentioned, much less explaine d, the basis for our jurisdiction, Hain does not qualify as precedent on the point, Palma-Salazar v. Davis , 677 F.3d 1031, 1036 (10th Cir. 2012) (following United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 38 (1952)). It is nonetheless notable that our holding here does not conflict with the actual practice of the en banc court in Hain

.- 6 - mistake to equate it with the ad hoc administrative act of signing off on the amount requested in a particular CJA voucher. See Clark , 278 F.3d at 461 (holding that “definitively determin[ing] whether [counsel ’s] services are co mpensable under the Act as a matter of law” “is qualitatively different from approving or disapproving the amount of expenses reasonabl y and necessarily incurred by counsel” for authorized representation); see also Gary , 686 F.3d at 1284 (Wilson, J ., dissenting) (“An order administratively approving (or disapprovi ng) of funds within the scope of an attorney’s [authorized] repr esentation is not remotely comparable to an order conclusively determining whet her certain proceedings fall within the representation authorized by § 3599.”). We see no meaningful distinction, fo r jurisdictional purposes, between the question of whether counse l’s CJA appointment encomp assed and hence permitted compensation for the pursuit of a lethal injection chal lenge under § 1983, and the controversy in Harbison as to whether counsel’s CJ A appointment encompassed the pursuit of relief in a stat e clemency proceeding. Accordingly, guided by Harbison , we hold that we have jurisdictio n over Mr. Drummond’s appeal. III. SCOPE OF COUNSEL’S CJA APPOINTMENT Turning to the merits, tw o subsections of § 3599 are critical to our analysis. First, § 3599(a) specifies the proceedings in which a CJA appointment may initially be made: “criminal action[s] in which a defendant is charged with a crime which may be punishable by death,” § 3599(a)(1), and “post conviction proceeding[s] under- 7 - [28 U.S.C. §] 2254 or 2255 . . . seeking to vacate or set asid e a death sentence,” § 3599(a)(2). Second, § 3599(e) specifies th e authorized scope of such appointments, which reaches beyond the confines of th e original proceeding to include “every subsequent stage of ava ilable judicial proceedings , including . . . appeals, applications for writ of cer tiorari to the Supreme Court of the United States, and all available post-conviction pr ocess, together with applications for stay of execution and other appropriate motions and procedures .” (Emphasis added). 4

4 The full text of the pertinen t CJA provisions reads as follows: (a)(1) Notwithstanding any other provisi ons of law to the contrary, in every criminal action in which a de fendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either-- (A) before judgment; or (B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment; shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f). (2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeki ng to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investig ative, expert, or other reasonably necessary services shall be entitled to the appoin tment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).

. . . (continued)- 8 - The first condition is clearly satisfied here. Mr. Drummond was appointed in connection with Mr. Hooper’s habeas proc eeding (and compensated pursuant to that appointment for his preliminary work on the lethal-injection challenge, until he commenced the § 1983 action). The crux of the matter is whether the scope of that appointment properly extended to the § 1983 action. On that point, we have found no relevant circuit precedent. Of course , the panel that compensated Mr. Drummond under the CJA for his work on Mr. Hooper’s lethal-injection a ppeal necessarily concluded that such work fe ll within the scope of § 35 99, but its brief unpublished order does not explain the rationale for that conclusion and the decision itself is not binding precedent, see 10th Cir. R. 32.1(A). This lack of precedent does not leav e us without guidance—we have the language of the statute and th at suffices, at least for th e particular circumstances presented here. As mentione d above, after considering the Supreme Court’s direction
in Hill regarding appropriate pr ocedures for challenging the constitutionality of

(e) Unless replaced by similarly qualif ied counsel upon the attorney’s own motion or upon motion of the defendant, each attorney so appointed shall represen t the defendant through out every subsequent stage of available judici al proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of th e United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other cl emency as may be available to defendant.- 9 - specific lethal-injection protocols, Mr . Drummond filed a § 1983 action seeking injunctive relief to stay Mr. Hooper’s execution until a constitutionally permissible protocol was provided. 5 In short, he pursued an appropriate procedure seeking a stay of execution —a course that tracks the specifi c language in § 3599(e) identifying judicial proceedings to which a CJA appoi ntment properly exte nds. Thus, without embracing any broad principle as to the st atutory authorization for counsel in § 1983 actions generally, we conclude that Mr. Drummond’s efforts on behalf of Mr. Hooper in this particular § 1983 action properl y fell within the scope of his existing appointment. 6 The judgment of the district court is re versed and the matter is remanded with directions to compensate Mr. Drummond for his work on behalf of Mr. Hooper in the

5 The complaint acknowledged the executio n could go forward if either of two proffered alternatives were us ed: a one-drug protocol cons isting of a lethal dose of a fast-acting barbiturate, or th e existing three-drug protocol with a back-up dose of barbiturate to ensure loss of consciousness before administ ration of drugs capable of inducing pain. See Complaint in W.D. Okla . No. 5:12-cv-00758-M.

6 In support of its contrary view, the di strict court cited the Guide to Judiciary Policy, which states in ge neral terms that the CJA do es not cover “[p]risoners bringing civil rights actions under 42 U.S.C. § 1983.” Guide to Judiciary Policy, Vol. 7, § 210.20.50(c). To the extent th is provision refers to a prohibition on the initial appointment of CJA counsel in § 19 83 proceedings, it si mply reflects the Congressional directive in § 3599(a) restri cting CJA appointments to criminal and post-conviction proceedings. As explained above, that direc tive is satisfied. To the extent the provision refers to a prohibition on the extension of a proper CJA appointment to include representa tion in related § 1983 proceedings that fall within the permissive scope of § 3599(e) , the Congressional direct ive must control and it authorizes the repr esentation here.- 10 - underlying § 1983 action. The specific amount of the CJA aw ard is, of course, left to the unreviewable discretion of the district court.

Entered for the Court

Timothy M. Tymkovich Circuit Judge