                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              February 24, 2009
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


    UNITED STATES OF AMERICA,

              Plaintiff,

    v.                                                 No. 07-5147

    SHEILA FRENCH,

              Defendant.
    ____________________________

    WILLIAM DIXON LUNN,

              Attorney-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE NORTHERN DISTRICT OF OKLAHOMA
                    (D.C. No. 4:03-CR-00181-JHP-6)


Submitted on the brief: *

William D. Lunn, Tulsa, Oklahoma, Attorney-Appellant.


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.




*
       After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
BRISCOE, Circuit Judge.



      William Lunn, who was appointed under the Criminal Justice Act (CJA),

18 U.S.C. § 3006A, to represent Sheila French, submitted a voucher under the

CJA for compensation and reimbursement of expenses incurred in representing

Ms. French in resentencing proceedings. The district court approved payment in

an amount significantly less than Mr. Lunn requested. He now seeks review of

the district court’s decision regarding his CJA compensation. We conclude that

we are without jurisdiction to consider this appeal, and dismiss this appeal.

      Ms. French was convicted on drug-related charges and sentenced to a term

of imprisonment. She appealed her sentence, and this court reversed and

remanded for resentencing in light of the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220, 246 (2005), and for correction of an error in the

drug-weight calculation. Mr. Lunn represented Ms. French on remand in the

district court resentencing proceedings, which included two hearings and six

briefs filed by Mr. Lunn (four of which were filed at the request of the district

court). After the resentencing, Mr. Lunn submitted a CJA voucher requesting

reimbursement of expenses and compensation in excess of the statutory

maximum, for a total amount of $7,420.75. A magistrate judge reviewed the

voucher request and recommended to the district court that the voucher be paid as

requested. In making his recommendation, the magistrate judge found that the

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case had previously been characterized by the court as “complex” (based in part

on the sentencing issues) and that the sentencing issues on remand remained

complex. He noted that the compensation request was unusually high, but that on

close review and in light of the shifting sentencing landscape, compensation in

excess of the statutory maximum was necessary to fairly compensate counsel.

See 18 U.S.C. § 3006A(d)(3) (statutory maximum may be waived in complex or

extended cases where court certifies that it is necessary for fair compensation).

Finally, after detailed consideration, the magistrate judge found that the expenses

should be reimbursed and that the compensation requested was reasonable and

necessary.

      The district court disagreed with the magistrate judge’s recommendations

and declined to adopt them. Instead, the district court found that Mr. Lunn’s

representation on resentencing was neither extended nor complex, and that he

could be fairly compensated for his services within the statutory maximum.

Consequently, the district court declined to certify the proceedings so as to

exceed the statutory maximum; it authorized the then-statutory maximum

compensation of $1,500 and reimbursement of expenses. Mr. Lunn appeals that

order, arguing that this court has jurisdiction to consider whether a district court’s

denial of “virtually all” of a CJA compensation request is proper. Aplt. Br. at 22.

He also claims the district court erred in refusing to certify his compensation




                                          -3-
request for payment in excess of the statutory maximum and that the

compensation he received was not reasonable.

      Every circuit court of appeals to consider this jurisdictional question has

held that CJA fee compensation determinations made by the district court are not

appealable. United States v. Stone, 53 F.3d 141, 143 (6th Cir. 1995); Shearin v.

United States, 992 F.2d 1195, 1196 (Fed. Cir. 1993); Landano v. Rafferty,

859 F.2d 301, 302 (3rd Cir. 1988); United States v. Rodriguez, 833 F.2d

1536,1537-38 (11th Cir. 1987); United States v. Walton (In re Baker), 693 F.2d

925, 927 (9th Cir. 1982); United States v. Smith, 633 F.2d 739, 742 (7th Cir.

1980); cf. United States v. Bloomer, 150 F.3d 146, 148 (2d Cir. 1998) (holding

that orders concerning fee determinations for services already rendered under the

CJA are not appealable). 1 Our circuit has come to the same conclusion, albeit in

dicta: “Fee determinations by the district judge pursuant to the [CJA] are

administrative in character and do not constitute final appealable orders within

the meaning of 28 U.S.C. § 1291.” United States v. Davis, 953 F.2d 1482,

1497 n.21 (10th Cir. 1992). We now join the other circuits that have reached the

question and hold that district court CJA fee determinations are not appealable

orders. As the Sixth Circuit stated, the CJA does not provide for appellate review



1
      Two circuits have reviewed CJA compensation decisions without
discussing jurisdiction. See United States v. Turner, 584 F.2d 1389 (8th Cir.
1978); United States v. Ketchem, 420 F.2d 901 (4th Cir. 1969).

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of a fee determination; instead, the district court has complete discretion, subject

only to minimal review by the chief judge of the circuit. Stone, 53 F.3d at 143.

In addition, the non-adversarial nature of the process supports the conclusion that

it is an administrative act, as opposed to a judicial decision. Id.; Rodriguez,

833 F.2d at 1537-38; In re Baker, 693 F.2d at 926-27.

      Mr. Lunn recognizes the weight of the circuit authority, but argues that his

dispute is reviewable because it is analogous to the situation in Davis. In that

case, the district court had completely neglected its duty to review the CJA

vouchers and forward them for payment, and counsel asked us to order the district

court to fulfill its duty to process the interim voucher. After recognizing the

general consensus among the circuits that orders concerning CJA fee

determinations were not appealable, we stated that the situation then before us

was “fundamentally different from claims concerning the amount of payment.”

Davis, 953 F.2d at 1497 n.21. Mr. Lunn argues that, as in Davis, his situation is

also fundamentally different from claims concerning the amount of payment. He

characterizes the request in Davis as one “not to be denied reasonable payments

for [counsel’s] services by interim payments,” just as he is requesting reasonable

payment for his service. Aplt. Br. at 24.

      However, Mr. Lunn’s situation is different than that presented in Davis.

The district court in Davis, contrary to the process prescribed by the CJA and the

court’s own order regarding processing of interim vouchers, had taken no action

                                            -5-
whatsoever on counsel’s interim vouchers–it had not reviewed the vouchers,

authorized compensation, or submitted them to the chief judge for review and

approval. What made the Davis situation fundamentally different from a claim

concerning the amount of payment was that the district court had not taken action

to process the interim vouchers at all. In Mr. Lunn’s case, the district court

fulfilled its administrative duty to review Mr. Lunn’s voucher and forward it for

payment. Notwithstanding Mr. Lunn’s attempt to characterize his dispute as about

the process by which the district court arrived at its conclusion, and regardless of

the fact that he disagrees with the district court’s analysis and conclusions

regarding whether the resentencing proceedings were complex and whether

exceeding the statutory maximum was necessary for fair compensation under the

CJA, it all comes down to the fact that Mr. Lunn disagrees with the amount of the

payment.

      Mr. Lunn also argues that we have jurisdiction in this case based on the

collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, (1949). We agree with the Sixth and the Ninth Circuits that the

district court decision concerning the amount of CJA fees does not come within

the collateral order doctrine for the same reason that it is not an appealable order

within the meaning of 28 U.S.C. § 1291–it is a decision that is administrative, not

judicial, in nature. See Stone, 53 F.3d at 143; In re Baker, 693 F.2d at 926-27.

Just as its administrative nature prevents it from being an appealable order under

                                          -6-
§ 1291, neither is it a judicial, interlocutory order subject to the collateral order

doctrine. Stone, 53 F.3d at 143.

      Mr. Lunn relies on the decision in United States v. Poland (In re

Derickson), 640 F.2d 946, 947-48 (9th Cir. 1981), to support his argument that

the collateral order doctrine provides a jurisdictional basis for this appeal. That

decision, however, does not further Mr. Lunn’s cause. That case involved an

appeal from a district court decision that the district court lacked jurisdiction to

consider counsel’s CJA voucher because the voucher was not submitted for

review within the administrative time limit. By its own terms, that case is

distinguishable:

      This appeal involves the district court’s determination that it lacked
      jurisdiction to consider an untimely voucher for attorney’s fees. We
      are not called upon to consider whether amounts awarded, methods
      of computation, or like matters related to attorney’s fees under the
      CJA are appealable.

Id. at 948. In fact, in a later Ninth Circuit decision holding that a district court

decision approving CJA fees in an amount less than requested by counsel was not

appealable, the court noted its decision in In re Derickson as “expressly point[ing]

out that we were not called upon to decide whether the certification of an actual

amount was appealable.” In re Baker, 693 F.2d at 925-26 & n.1. In re Derickson

presented a different jurisdictional question than is presented here, and the Ninth

Circuit has since held that district court orders “establishing the amount of

attorneys fees under the [CJA] are not appealable.” In re Baker, 693 F.2d at 926.

                                           -7-
      The third issue raised by Mr. Lunn is that the compensation authorized by

the district court was unreasonable. This claim also goes to the amount of the

district court’s fee determination, and, as such, is not appealable.

      The appeal is DISMISSED for lack of jurisdiction.




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