Chapter 3, § 310: In General
Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 3: Authorization and Payment for Investigative, Expert, or Other Services
§ 310.10 Availability
§ 310.20 Limitations
§ 310.30 Ex Parte Applications
§ 310.40 Claims for Services Other than Counsel
§ 310.50 Forms for the Authorization and Payment for Services Other than Counsel
§ 310.60 Interim Payments
§ 310.65 Proration of Claims
§ 310.70 Review of Vouchers
(a) Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services.
(b) In this connection, a person with retained counsel is financially unable to obtain the necessary services if the person's resources are in excess of the amount needed to provide the person and the person's dependents with the necessities of life, provide defendant's release on bond, and pay a reasonable fee to the person's retained counsel, but are insufficient to pay for the necessary services.
(a) In responding to requests for services under 18 U.S.C. § 3006A(e) by a person represented by retained counsel, the court should inquire into the fee arrangement between the retained attorney and the client.
(b) If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant's trial expenses, the court may order the retained attorney to pay out of such fees all or such part of the costs and expenses as the court may direct.
(c) The procedure outlined in the Guide, Vol 7A, § 210.40.40 applies to such persons who are financially able to pay some, but unable to pay all, the costs of necessary services.
(a) Persons who are eligible for representation under the CJA, but who have elected to proceed pro se, may, upon request, be authorized to obtain investigative, expert, and other services in accordance with 18 U.S.C. § 3006A(e).
(b) The court should authorize subsection (e) services for pro se litigants and review and approve resulting claims in the same manner as is its practice with respect to requests made by CJA panel attorneys. However, in matters for which appointment of counsel is discretionary under 18 U.S.C. § 3006A(a)(2), the court should make a threshold determination that the case is one in which the interests of justice would have required the furnishing of representation.
(c) Although a federal defender organization may be requested to provide administrative assistance to pro se litigants who wish to arrange for subsection (e) services, the investigative, paralegal or other services or resources of the organization should ordinarily be employed only when the organization is appointed as counsel of record, responsible for the conduct of the litigation.
(a) Prior to engaging any relative (as the term is defined in 5 U.S.C. § 3110) to perform CJA compensable services, other than as associate counsel in the same law firm (see: Guide, Vol 7A, § 230.53.10), counsel should first provide notification of the relationship and potential services to the presiding judicial authority.
(b) The court may, in the interest of justice, and upon finding that timely procurement of necessary services could not await prior notification, approve payment for such services up to the dollar threshold for obtaining services without prior authorization under 18 U.S.C. § 3006A(e)(2) and the CJA Guidelines (Guide, Vol 7A, § 310.20.30).
(a) With prior authorization, compensation for investigative, expert, and other services is limited to the amounts in the following table for CJA-compensable work performed on or after the effective date. For guidelines applicable to capital cases, see: Guide, Vol 7A, § 660.10.40 and § 660.20.
|If services were performed between...||The compensation maximum is...||Authority|
|05/27/10 to present||$2,400||Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010.|
|12/8/04 to 5/26/10||$1,600||Omnibus Appropriations Act, Fiscal Year 2005, Pub. L. No. 108-447, H.R. 4818, enacted December 8, 2004.|
|11/14/86 to 12/7/04||$1,000||Pub. L. No. 99-651, 1986 HR 3004, enacted November 14, 1986.|
(b) The waivable case compensation maximum amounts apply per organization or individual, exclusive of reimbursement for expenses reasonably incurred, and per individual authorization to perform said service, except with regard to capital cases. See: Guide, Vol 7A, § 660.20.
(c) A separate authorization should be obtained for each type of service for each person served, and for each defendant served, and for each case.
(d) While the service provider may be compensated separately for each person served, care should be taken to ensure that duplicate charges are not being made for the same services.
(e) If, under 18 U.S.C. § 3006A(e), such services are rendered by members of an organization such as a corporation, unincorporated association, or partnership (other than those created under 18 U.S.C. § 3006A(g)), in their capacities as members of that organization, compensation is deemed to have been earned by the organization and is paid to it only once, per CJA client served, in an amount not to exceed the statutory maximum, exclusive of reimbursement for expenses reasonably incurred.
(a) Payment in excess of the case compensation limit for services authorized prior to the performance thereof may be made when certified by the court or U.S. magistrate judge and approved by the chief judge of the circuit (or an active or senior circuit judge to whom excess compensation approval authority has been delegated) as being necessary to provide fair compensation for services of an unusual character or duration.
(b) If it can be anticipated that the compensation will exceed the statutory maximum, advance approval should be obtained from the court and the chief judge of the circuit (or the active or senior circuit judge to whom excess compensation approval authority has been delegated). See: Appx 3A (Sample Request for Advance Authorization for Investigative, Expert, or Other Services).
(a) 18 U.S.C. § 3006A(e)(2)(A) authorizes the obtaining of investigative, expert, and other services, without prior authorization but subject to subsequent review, providing the cost of the services obtained does not exceed the amounts listed in the following table, plus expenses reasonably incurred. For information regarding obtaining investigative, expert, and other services in capital cases, see: Guide, Vol 7A, § 660.
|If services were performed between...||The compensation maximum is...||Authority|
|05/27/10 to present||$800||Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010.|
|12/8/04 to 5/26/10||$500||Omnibus Appropriations Act, Fiscal Year 2005, Pub. L. No. 108-447, H.R. 4818, enacted December 8, 2004.|
|11/14/86 to 12/7/04||$300||Pub. L. No. 99-651, 186 H.R. 3004, enacted November 14, 1986.|
(b) The limitation noted above in § 310.20.30(a) may be waived, however, if the presiding judge or U.S. magistrate judge (if the services were rendered in a case disposed of entirely before the U.S. magistrate judge), in the interest of justice, finds that timely procurement of necessary services could not await prior authorization. See: 18 U.S.C. § 3006A(e)(2)(B).
The Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010, amended the CJA to increase the waivable case compensation amounts listed in § 310.20.10 and § 310.20.30 simultaneously with any subsequent, cumulative adjustments under 5 U.S.C. § 5303 in the rates of pay under the General Schedule (currently calculated based on the determination of the annual Employment Cost Index adjustment), rounded to the nearest hundred dollars. The Administrative Office will provide notice when new threshold amounts are effective under this provision.
Ex parte applications for services other than counsel under 18 U.S.C. § 3006A(e) must be heard in camera, and must not be revealed without the consent of the defendant. The application must be placed under seal until the final disposition of the case in the trial court, subject to further order of the court. Maintaining the secrecy of the application prevents the possibility that an open hearing may cause defendants to reveal their defense. Appointed counsel may not be required to submit evidence of a prior attempt to enter into a stipulation with the U.S. attorney as a prerequisite to obtaining services under 18 U.S.C. § 3006A(e). The court may encourage counsel to enter into stipulations, in the interest of expedition and economy, without, however, disclosing the contents or otherwise compromising the secret nature of the ex parte application.
All claims for services other than counsel, under 18 U.S.C. § 3006A(e), should include the following:
(a) a statement as to the type of, dates of, and time expended for, the services provided;
(b) an explanation of the fee arrangement (e.g., hourly rate, per diem rate, etc.);
(c) an itemized statement of all expenses for which reimbursement is claimed; and
(d) supporting documentation, where practicable, for all expenses of lodgings and subsistence, and for any expenses in excess of $50.
Forms for the authorization and payment for services other than counsel, together with instructions for the execution and distribution thereof, can be found on the judiciary's public website.
(a) Where it is considered necessary and appropriate in a specific case, the presiding trial judge may arrange for periodic or interim payments to an individual whose services are obtained under 18 U.S.C. § 3006A(e). For instructions on the procedures for effecting interim payments to persons other than counsel, as well as a sample memorandum order on this subject which provides for two alternative payment methods, see: Appx 3B (Procedures for Interim Payments to Service Providers in Non-Death Penalty Cases).
(b) The payment options provided in Appx 3B are designed to strike a balance between the interest in relieving subsection (e) service providers of financial hardships in extended and complex cases, and the practical application of the statutorily imposed responsibility of the chief judge of the circuit to provide a meaningful review of claims for excess compensation. Other interim payment arrangements which effectuate this balance may be devised in consultation with the Defender Services Office, Administrative Office of the United States Courts (AO).
§ 310.60.20 Death Penalty Cases
Presiding judicial officers are urged to permit interim payment in death penalty cases. Because the CJA compensation maximums for investigative, expert, and other services set out in § 310.20.10(a) do not apply in capital cases, different procedures and memorandum orders must be used in those cases. See: Guide, Vol 7A, § 660.20. These procedures and sample memorandum orders are also set forth in Appx 3C (Procedures for Interim Payments to Service Providers in Capital Proceedings).
(a) If services were provided for more than one CJA representation, the time spent in common, including travel time, must be represented on the voucher forms by:
- prorating the service time among the representations on separate vouchers; or
- billing the entire service time on a voucher pertaining to one of the representations
The supporting materials to the vouchers must explain the method of billing and, when applicable, cross-reference the other CJA representations (see: § 310.65.20).
(b) When a service provider incurs travel or other expenses applicable to more than one CJA representation, the entire amount of the expenses must be billed on one voucher.
Time or expenses "spent in common" includes work performed simultaneously or within the same unit of time, or expenses incurred, for more than one representation (e.g., travel for more than one client). Double billing of time or expenses is prohibited (e.g., billing the same travel time or expenses applicable to more than one representation on more than one voucher).
(c) A "CJA representation" is one in which the attorney is:
- a federal public or community defender providing representation under the CJA or related statutes, or
- a CJA panel attorney or other attorney or entity authorized to obtain services for a particular representation under the CJA or related statutes.
Reference to a "voucher" in this section includes invoices submitted to a federal public or community defender organization for work performed for that entity.
For information regarding the overlap of billing time periods in the interpreter context specifically, see: § 320.15.30.
(a) Whenever a service provider submits a voucher, as provided by this section, that includes time spent in common, if the time is prorated then each CJA representation must be cross-referenced on the supporting documentation to each voucher. If the time is billed to one representation, the other representations must be cross-referenced on the supporting documentation to that voucher. However, to ensure that an appointed attorney does not receive inappropriate information as to another attorney's use of the service provider, the CJA representations that are cross-referenced should not be identified by name and case number if the work was performed for an attorney other than the one who will be certifying the voucher, although the number of other representations should be listed.
(b) After the attorney certifies the service provider's voucher, the service provider, upon the request of the court's designated CJA voucher review personnel, must provide the name, case number, and any other identifying information for such representations.
Proration of time among CJA representations must not result in a service provider billing a larger amount than would have been billed if all the time was assigned to one voucher.
Where compensation is claimed on a voucher for time spent in common on more than one CJA representation, the compensation will be applied to the pre-authorized and case compensation maximum amounts for the representation on that voucher.
(a) If the service provider is billing under the CJA for time or expenses, including travel, that were spent in common for a purpose other than a CJA representation, the service provider must report such information so that the court can determine whether, in fairness to the provider, the time or expenses should be apportioned and the provider compensated for the time or expenses reasonably attributable to the CJA.
Note: There is no apportionment between a contract court interpreter's work for a court unit and the CJA, see: § 320.15.30.
(b) The service provider should explain the rationale for billing under the CJA, and the court may conduct a further inquiry.
(c) In determining whether time or expenses spent in common for a purpose other than a CJA representation should be apportioned, the court should consider:
- the time or expenses reasonably expended in the performance of the service provider's duties under the CJA in relation to the time and expenses expended furthering other purposes;
- the significance to the representation of the duties performed or expenses incurred; and
- the likelihood that the service provider would have performed the services or incurred the expenses under the CJA in the absence of the other purposes.
Absent extraordinary circumstances, judges should act upon claims for compensation for investigative, expert, or other services within 30 days of submission.
Appx 3A: Sample Request for Advance Authorization for Investigative, Expert or Other Services (pdf)(word)(wp)
Appx 3B: Procedures for Interim Payments to Service Providers In Non-Death Penalty Cases (pdf)(word)(wp)
Appx 3C: Procedures for Interim Payments to Service Providers in Capital Proceedings (pdf)(word)(wp)
Appx 3D: Sample Order Authorizing the Acquisition of Computer [Hardware and/or Software] Under the CJA (pdf)(word)(wp)
Last substantive revision (Transmittal 07-007) September 17, 2013
Last revised (minor technical changes) December 18, 2014