United States District Court, E.D. Missouri, Eastern Division
JOHN E. WINFIELD, Petitioner,
TROY STEELE, Respondent.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
At issue is whether federally appointed counsel may be reimbursed under the Criminal Justice Act, 18 U.S.C. § 3006A and 18 U.S.C. § 3599, for litigating an action under 42 U.S.C. § 1983. The purpose of this Memorandum and Order is to set forth the issue and to invite amicus briefing from the United States as well as further briefing from petitioner.
Plaintiff filed this action under § 1983 fifteen days before he was scheduled to be executed by lethal injection. He alleged that his due process rights were violated by the Warden of the Eastern Reception Diagnostic and Correctional Center and other high level prison supervisors who allegedly interfered with a witness who wanted to testify on his behalf in clemency proceedings.
After holding an evidentiary hearing, I entered a preliminary injunction and stay of execution. The preliminary injunction enjoined defendants from obstructing, pressuring, discouraging, or otherwise threatening any correctional employees from providing statements in support of petitioner's clemency efforts. The Court of Appeals for the Eight Circuit reversed, and the United States Supreme Court refused to intervene. Petitioner was executed on June 18, 2014.
The question that needs to be answered is whether § 1983 actions are compensable under the CJA. The Guide to Judiciary Policy states categorically that they are not. See Guide, Vol. 7A § 210.20.50.
A review of several district court cases suggests that the majority of courts would not compensate counsel for pursuing § 1983 litigation. See e.g., Smulls v. Luebbers, 2012 WL 2848152 *3 (E.D. Mo. 2012) ("The Court may not  compensate counsel under § 3599 for pursuing civil litigation challenging the legality or constitutionality of the execution protocol.") and Cooey v. Strickland, Slip Copy, 2010 WL 1434312 *3 (S.D. Ohio 2010) (§ 3599 "does not include civil actions against state officials") (emphasis in original).
However, at least one circuit court has held that counsel was entitled to recover fees under the CJA for work performed in connection with a prisoner's unsuccessful § 1983 challenge to execution by lethal injection. Hooper v. Jones, 536 Fed.Appx. 796, 799-800 (10th Cir. 2013). In that case,
[counsel] was appointed under § 3599(a)(2) to represent Mr. Hooper in habeas proceedings challenging his death sentence. That effort ultimately was unsuccessful... [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 [counsel's] existing CJA appointment. After working for some time on the matter under the auspices of his habeas appointment, [counsel] 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, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). Shortly thereafter, district court personnel informed [counsel] 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.
With the scheduled execution date approaching, [counsel] 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. As [counsel] 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, [counsel] 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 ...