   Case: 12-20054    Document: 00511753374      Page: 1   Date Filed: 02/09/2012




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                 February 9, 2012

                                  No. 12-20054                    Lyle W. Cayce
                                                                       Clerk

In re: MARCUM L.L.P.,

                                            Petitioner


                    Petition for a Writ of Mandamus to the
                     Southern District of Texas, Houston


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:
      Petitioner Marcum L.L.P. (“Marcum”) has filed an Emergency Motion for
Stay or Alternative Petition for Writ of Mandamus, which arises out of Marcum’s
services as an expert in the trial of Allen Stanford, United States v. Stanford,
4:09-cr-342 (S.D. Tex.). Marcum agreed that it would be paid for its services as
provided under the Criminal Justice Act, 18 U.S.C. § 3006A (“CJA”), which
allows, inter alia, for the appointment of professionals to provide “investigative,
expert, or other services necessary for adequate representation . . . .”
§ 3006A(e)(1). Under the CJA, payments to experts above $2,400 must be
certified by the district court in which services were rendered, and approved “by
the chief judge of the circuit.” § 3006A(e)(3). This procedure applied in this case
because Marcum’s requested compensation well exceeded the $2,400 threshold.
      Marcum seeks appellate review of Chief Judge Edith H. Jones’s Service
Provider Continuity and Payment Order (the “Order”), which was issued after
Marcum submitted a letter of resignation on December 30, 2011. The Order
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                                        No. 12-20054

approved partial payment of Marcum’s fees that were previously certified by the
district court, and also directed Marcum “to continue work on the case as
previously planned, including the provision of testifying experts, through the end
of trial, and, if required by counsel, through the conclusion of the case in the
district court.” Marcum appeals only this second part of the Order, and seeks
either a stay pending appeal or a writ of mandamus.1
       We are without jurisdiction to consider this appeal. The Chief Judge’s
Order is neither a “final decision[] of the district court[]” under 28 U.S.C. § 1291,
nor an appealable interlocutory district court order under 28 U.S.C. § 1292, but
rather an order issued pursuant to the Chief Judge’s authority under the CJA.
18 U.S.C. § 3006A(e)(3). As the Seventh Circuit in United States v. D’Andrea,
612 F.2d 1386 (7th Cir. 1980), has explained:
       The Criminal Justice Act is silent on the availability of judicial
       review . . . of the decision by the chief judge of the circuit denying
       approval of the full amount certified by the court in which the
       representation was rendered. . . .

       [W]hen the chief judge of the circuit has approved compensation or
       reimbursement less than that amount certified by the court in
       which the representation was rendered, counsel may request
       reconsideration by motion. However, this motion is addressed solely
       to the chief judge. Upon disposition of the request for the chief judge
       to review his decision, further review of the chief judge’s decision is
       not available from this Court and any counsel’s further remedy lies
       in a mandamus action in the United States Supreme Court.
Id. at 1387-88.2 Other courts agree. See United States v. Obasi, 435 F.3d 847, 852
(8th Cir. 2006) (“[A] determination by the chief circuit judge [under the CJA] can


       1
           Marcum also filed a motion for reconsideration with the Chief Judge, which she has
denied.
       2
        Although D’Andrea arose out of an attorney’s appeal following the disallowance of a
portion of his claimed compensation under 18 U.S.C. § 3006A(d)(3), the excess attorney
compensation procedure under 18 U.S.C. § 3006A(d)(3) is analogous to the procedure for excess
expert compensation under Section 3006A(e)(3).

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                                        No. 12-20054

only be challenged by seeking reconsideration or mandamus in the Supreme
Court.”); United States v. Johnson, 391 F.3d 946, 949 (8th Cir. 2004) (“The chief
judge’s decision [under Section 3006A(e)(3)] is . . . 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.”) (internal quotation marks and citation omitted); see also
United States v. Stone, 53 F.3d 141, 143 (6th Cir. 1995) (“We . . . hold that §
3006A fee determinations are not appealable orders.”).
       Although Marcum challenges the Order only insofar as the Order directs
Marcum to “continue work on the case as previously planned” through the trial,
and does not appeal the actual amount of funds awarded, the Order has
nevertheless been issued pursuant to the Chief Judge’s authority under the CJA.
As such, we have no jurisdiction to consider its merits. Whether the Chief Judge
erred in issuing such an order can be resolved, if at all, only by the Supreme
Court.3
       Marcum alternatively contends that we should treat its motion as a
petition for writ of mandamus. Although it is true that an appellate court has
the authority to enter mandamus under the All Writs Act, 28 U.S.C. § 1651, the
exercise of that authority requires some independent basis of jurisdiction. See
Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (“While the All Writs Act
authorizes employment of extraordinary writs, it confines the authority to the
issuance of process ‘in aid of’ the issuing court’s jurisdiction.”); Neuman v.
Blackwell, 204 F. App’x 348, 349 (5th Cir. 2006) (“[T]he All Writs Act . . . does


       3
         Marcum has filed in the Supreme Court both a petition for writ of mandamus and an
application for a stay of the Order. The application for a stay has been denied, and the petition
remains pending. We observe that Marcum’s petition in fact recognizes that the Chief Judge’s
Order is “not subject to review in a court of appeals,” a position which is inconsistent with that
taken before this panel.

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                                  No. 12-20054

not provide an independent basis for mandamus jurisdiction.”). Marcum fails to
identify a jurisdictional basis for a writ of mandamus or even an Article III
controversy. See Stone, 53 F.3d at 143 (characterizing a fee determination under
the CJA as a non-adversarial administrative act).
      Moreover, the writ of mandamus has traditionally been used only “‘to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so.’” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (quoting Roche
v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). The Order is most certainly
not a decision of an “inferior court.” We have located no authority, nor has
Marcum directed us to any, that would allow this panel to issue a writ of
mandamus with respect to the Order. In fact, the only relevant authority
suggests that mandamus would be improper. See D’Andrea, 612 F.2d at 1388
(“We cannot conclude that [the chief judge’s] duty [under 18 U.S.C. §
3006A(d)(3)] is solely ministerial and therefore conclude that review of the
decision of the chief judge to authorize reimbursement in excess of the statutory
maximum can be accomplished only by way of mandamus by the Supreme
Court.”). Therefore, we conclude that we have no jurisdictional basis upon which
to issue a writ of mandamus.
      For these reasons, Marcum’s Emergency Motion for Stay and Alternative
Petition for Writ of Mandamus is DISMISSED FOR LACK OF JURISDICTION.
      Marcum’s Motion for Leave to File CJA Documents Under Seal is
GRANTED.




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