                    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.                 *
                                   ___________

                             Submitted: May 13, 2004
                                Filed: December 14, 2004
                                 ___________

Before WOLLMAN, HAMILTON,1 and BYE, Circuit Judges.
                        ___________

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.




      1
       The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth
Circuit, sitting by designation.
                                          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


      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.

                                         -2-
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

      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

                                          -3-
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.



to fund an expert witness).

                                          -4-
The appeal is dismissed for lack of jurisdiction.
                ______________________________




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