UNITED STATES COURT 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 the district court refusing 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 Cir. R. 34.1(G). The case is 

therefore ordered submitted without 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 persuasive 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
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him under the Criminal Justice Act (CJA), 18 U.S.C. § 3599, for work performed in 

connection with an unsuccessful challenge to Hooper’s execution by lethal injection. 

For the reasons explained below, we exercise 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 sentence. That effort 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 supplemental litigation budget for this purpose in 

connection with Mr. Drummond’s existing CJA appointment. After working for 

some time on the matter under the auspices 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 protocol—a course approved by the Supreme Court 

in Hill v. McDonough, 547 U.S. 573, 579-83 (2006). Shortly thereafter, district court 

personnel informed Mr. Drummond by phone 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 efforts on Mr. Hooper’s 

behalf notwithstanding that communication. 
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With the scheduled execution date approaching, Mr. Drummond filed a motion 

for a preliminary injunction to stay Mr. Hooper’s execution. The district court 

denied the motion and an immediate appeal was taken. This court affirmed the denial 

of the preliminary injunction and the Supreme Court refused further review. See

Hooper v. Jones, 491 F. App’x 928 (10th Cir.), cert. denied, 133 S. Ct. 89 (2012). 

As Mr. Drummond now emphasizes, this court appointed and compensated him under 

the CJA for his representation of Mr. Hooper in those appellate proceedings. On 

August 14, 2012, Mr. Hooper 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 injection 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 the ground that § 1983 actions are not within 

the purview of the CJA. 

II. APPELLATE JURISDICTION 

 This case requires us to resolve an issue of appellate jurisdiction that has split 

the circuits that have addressed it---are there any circumstances (and, in particular, 

those presented here) in which CJA counsel can appeal the denial of a compensation 

request? Two lines of authority help illustrate the legal framework and why we think 

the answer is yes. The first sets forth the general rule that a court’s ad hoc review 

and approval, reduction, or denial of a CJA fee voucher is a mere “administrative 
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act,” not a “judicial decision” appealable under § 1291. United States v. French, 

556 F.3d 1091, 1093 (10th Cir. 2009) (joining six other circuits disclaiming appellate 

jurisdiction when appeal merely challenges 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 held 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 both lines of authority. As 

in French, the district court merely reduced counsel’s request for compensation under 

the CJA. On the other hand, the basis for the reduction was not an ad hoc 

administrative judgment about the appropriate size of counsel’s fee 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 determination is the 

 

1

 The inapplicability of § 1291 is jurisdictionally dispositive, because the CJA 

does not contain an independent grant of appellate jurisdiction. 
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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 split opinion that such a determination is 

materially indistinguishable from a run-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 that appellate review is available in these circumstances.3

 

The decision whether to compensate counsel here involves interpreting and 

applying the provisions in § 3599 governing the authorized scope of a CJA 

appointment—in this case whether it encompasses representation of a capital habeas 

petitioner in related § 1983 proceedings challenging the execution of his death 

sentence. The interpretation and application of statutory directives is the very 

essence of district court decision-making routinely reviewable 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 contained essentially the same relevant language, Kelly applied 

Clark’s jurisdictional holding to a case involving § 3559. 

3

 We note that our circuit exercised jurisdiction 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 compensation on basis that representation in state clemency 

proceeding fell outside scope of counsel’s statutory authorization). But because we 

never mentioned, much less explained, 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. 
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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 compensable under the 

Act as a matter of law” “is qualitatively different from approving or disapproving the 

amount of expenses reasonably and necessarily incurred by counsel” for authorized 

representation); see also Gary, 686 F.3d at 1284 (Wilson, J., dissenting) (“An order 

administratively approving (or disapproving) of funds within the scope of an 

attorney’s [authorized] representation is not remotely comparable to an order 

conclusively determining whether certain proceedings fall within the representation 

authorized by § 3599.”). 

We see no meaningful distinction, for jurisdictional purposes, between the 

question of whether counsel’s CJA appointment encompassed and hence permitted 

compensation for the pursuit of a lethal injection challenge under § 1983, and the 

controversy in Harbison as to whether counsel’s CJA appointment encompassed the 

pursuit of relief in a state clemency proceeding. Accordingly, guided by Harbison, 

we hold that we have jurisdiction over Mr. Drummond’s appeal. 

III. SCOPE OF COUNSEL’S CJA APPOINTMENT 

 Turning to the merits, two 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 
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[28 U.S.C. §] 2254 or 2255 . . . seeking to vacate or set aside a death sentence,” 

§ 3599(a)(2). Second, § 3599(e) specifies the authorized scope of such appointments, 

which reaches beyond the confines of the original proceeding to include “every 

subsequent stage of available judicial proceedings, including . . . appeals, 

applications for writ of certiorari to the Supreme Court of the United States, and all 

available post-conviction process, together with applications for stay of execution 

and other appropriate motions and procedures.” (Emphasis added).4

 

 

4

 The full text of the pertinent CJA provisions reads as follows: 

(a)(1) Notwithstanding any other provisions of law to the contrary, in 

every criminal action in which a defendant 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, seeking to vacate or set aside a death 

sentence, any defendant who is or becomes financially unable to obtain 

adequate representation or investigative, expert, or other reasonably 

necessary services 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). 

. . . 

(continued) 
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The first condition is clearly satisfied here. Mr. Drummond was appointed in 

connection with Mr. Hooper’s habeas proceeding (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 appeal necessarily 

concluded that such work fell within the scope of § 3599, 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 leave us without guidance—we have the 

language of the statute and that suffices, at least for the particular circumstances 

presented here. As mentioned above, after considering the Supreme Court’s direction 

in Hill regarding appropriate procedures for challenging the constitutionality of 

 

(e) Unless replaced by similarly qualified counsel upon the attorney’s 

own motion or upon motion of the defendant, each attorney so 

appointed shall represent the defendant throughout every subsequent 

stage of available judicial proceedings, including pretrial proceedings, 

trial, sentencing, motions for new trial, appeals, applications for writ of 

certiorari to the Supreme Court of the 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 clemency as may be available to 

defendant. 
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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 specific language in § 3599(e) identifying 

judicial proceedings to which a CJA appointment properly extends. Thus, without 

embracing any broad principle as to the statutory authorization for counsel in § 1983 

actions generally, we conclude that Mr. Drummond’s efforts on behalf of Mr. Hooper 

in this particular § 1983 action properly fell within the scope of his existing 

appointment. 6 

 The judgment of the district court is reversed 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 execution could go forward if either of two 

proffered alternatives were used: a one-drug protocol consisting of a lethal dose of a 

fast-acting barbiturate, or the existing three-drug protocol with a back-up dose of 

barbiturate to ensure loss of consciousness before administration 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 district court cited the Guide to Judiciary 

Policy, which states in general terms that the CJA does 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 this provision refers to a prohibition on the 

initial appointment of CJA counsel in § 1983 proceedings, it simply reflects the 

Congressional directive in § 3599(a) restricting CJA appointments to criminal and 

post-conviction proceedings. As explained above, that directive is satisfied. To the 

extent the provision refers to a prohibition on the extension of a proper CJA 

appointment to include representation in related § 1983 proceedings that fall within 

the permissive scope of § 3599(e), the Congressional directive must control and it 

authorizes the representation here. 
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underlying § 1983 action. The specific amount of the CJA award is, of course, left to 

the unreviewable discretion of the district court. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge