1

The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth

Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3379

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Melroy Johnson, Sr., *

*

Appellant. *

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Submitted: May 13, 2004

Filed: December 14, 2004

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Before WOLLMAN, HAMILTON,1

 and BYE, Circuit Judges.

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WOLLMAN, Circuit Judge.

Melroy Johnson, Sr. appeals from the denial of his request for funds to obtain

an expert under the Criminal Justice Act (CJA) in excess of the maximum amount

permissible under 18 U.S.C. § 3006A(e)(3) (2003). Because we conclude that we

lack jurisdiction, we dismiss the appeal.
2

The Honorable Mark W. Bennett, Chief Judge, United States District Court

for the Northern District of Iowa.

3

The Honorable James B. Loken, Chief Judge, United States Court of Appeals

for the Eighth Circuit.

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I.

Johnson was tried and convicted of possession and distribution of cocaine base.

The district court2

 imposed concurrent sentences of 175 months for each count after

granting a substantial motion for downward departure under the United States

Sentencing Guidelines Manual (U.S.S.G.) § 5H1.4 (2000), finding that Johnson’s

severe coronary artery disease was sufficient to justify the departure. Johnson

appealed his conviction and the government appealed the downward departure. We

affirmed the conviction, but reversed and remanded for resentencing, holding that the

district court abused its discretion by improperly applying the guideline. United

States v. Johnson, 318 F.3d 821, 826 (8th Cir. 2003).

Before his resentencing hearing, Johnson filed an ex parte application seeking

funding for an expert witness under the CJA, arguing that the expert’s testimony

would help illuminate Johnson’s physical state so that the court could reconsider a

possible downward departure under § 5H1.4. Although the district court agreed that

the costs appeared necessary and recommended approval of an advance authorization

of up to $3000, the chief judge of our court3

 disapproved the authorization. Johnson’s

resentencing hearing proceeded without additional evidence or testimony, and he was

sentenced to concurrent sentences of 235 months on each count.

II.

Johnson argues that the denial of the funds deprived him of due process and

effective assistance of counsel. Before we may review such a claim, however, we

must assure ourselves that we have jurisdiction to hear it. This is a court of limited

jurisdiction, and we may review only final decisions and certain interlocutory
4

If the district court has denied a § 3006A(e) request, this court may conduct

a limited review of the denial. Each case in which we have reviewed the denial of

fees, however, has involved review of decisions by the district court, not the chief

judge. We have characterized our review of a district court denial by stating that

“[t]he granting and denial of funds under 18 U.S.C. § 3006A(e) is dependent on

factual findings and evaluative judgment and thus must be committed to the

discretion of the trial court. Denial or limitation of funds is not grounds for reversal

absent a showing of prejudice.” United States v. Bledsoe, 674 F.2d 647, 668 (8th Cir.

1982); see also United States v. Bertling, 370 F.3d 818, 820-21 (8th Cir. 2004)

(finding no abuse of discretion or prejudice resulting from the district court’s failure

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decisions of federal district courts. 28 U.S.C. §§ 1291-1292. We conclude that we

do not have jurisdiction to review a discretionary decision of the chief judge.

Under the CJA, a defendant may submit an ex parte application for funding for

expert services necessary for his defense, and the district court may authorize up to

$1000 for such services. 18 U.S.C. §§ 3006A(e)(1) & (e)(3). If the defendant seeks

funding in excess of that amount, however, he must show that the funds are

“necessary to provide fair compensation for services of an unusual character or

duration.” 18 U.S.C. § 3006A(e)(3). If the district court certifies the request for

excess funding, it is then submitted to the chief judge of the circuit for approval. Id.

The chief judge’s role under the CJA is similarly limited in both 18 U.S.C. §

3006A(d)(3) (attorneys’ fees) and § 3006A(e)(3) (other services). He becomes

involved only if the court presiding in the case has approved the request. The role of

the chief judge therefore relates to the management of funds, and the decision to

approve a recommendation for excess funds is entirely his responsibility, not that of

an appellate panel. See United States v. Johnson, 549 F. Supp. 78, 80 (D. D.C. 1982)

(opinion by Chief Judge Spottswood W. Robinson, III, clarifying his limited authority

under § 3006A(d)(3)). 

In this case, Johnson is challenging the decision of the chief judge to deny the

district court’s recommendation to authorize excess fees.4

 Although there is little
to fund an expert witness). 

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case law addressing similar situations before a court of appeals, the Seventh Circuit

examined a chief judge’s denial of excess payment under section 3006A(d)(3) and

held that it did not have jurisdiction to review the chief judge’s decision. United

States v. D’Andrea, 612 F.2d 1386, 1387-88 (7th Cir. 1980). The D’Andrea court

looked to analogous case law regarding review of the chief judge’s role in

constituting three-judge district courts and concluded that once the chief judge

performs a specific statutory duty, no remedy could be pursued except in the Supreme

Court. D’Andrea, 612 F.2d at 1388; 28 U.S.C. § 2284. Under the three-judge district

court statute, the chief judge has discretion to appoint two judges to complete the

court, including at least one circuit judge. 28 U.S.C. § 2284(b)(1). The court of

appeals may review a single district judge’s decision not to recommend the

empaneling of a three-judge court. See Idlewild Bon Voyage Liquor Corp. v.

Epstein, 370 U.S. 713, 715-16 (1962) (per curiam); Borden Co. v. Liddy, 309 F.2d

871, 876 (8th Cir. 1962). It ceases to have jurisdiction once the chief judge has acted,

however, even over claims regarding the decision to constitute the three-judge court.

See, e.g., Miller v. Smith, 236 F.Supp. 927, 931 (D.Pa. 1964) (chief judge of the

circuit finding that a three-judge court was not necessary and stating that if his

decision was incorrect, the remedy of mandamus would be available in the Supreme

Court to correct it).

We agree with the reasoning of the D’Andrea court. The chief judge’s decision

is neither “a final decision of the district court” under 28 U.S.C. § 1291, nor an

appealable interlocutory order under 28 U.S.C. § 1292. It is instead an administrative

decision that is beyond our jurisdiction. We conclude that a request for

reconsideration of the chief judge’s decision can be addressed only to the chief judge,

and if denied, the only possible remedy is “a mandamus action in the United States

Supreme Court.” D’Andrea, 612 F.2d at 1388.
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The appeal is dismissed for lack of jurisdiction.

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