Chapter 2, § 230: Compensation and Expenses of Appointed Counsel
Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 2: Appointment and Payment of Counsel
§ 230.10 Forms for Compensation and Reimbursement of Expenses
§ 230.13 Time Limits
§ 230.16 Hourly Rates and Effective Dates in Non-Capital Cases
§ 230.20 Annual Increase in Hourly Rate Maximums
§ 230.23 Case Compensation Maximums
§ 230.26 Case Budgeting
§ 230.30 Supporting Memorandum Justifying Compensation Claimed
§ 230.33 Review and Approval of CJA Vouchers
§ 230.36 Notification of Proposed Reduction of CJA Compensation Vouchers
§ 230.40 Payments by a Defendant
§ 230.43 Approval Authority of U.S. Magistrate Judges
§ 230.46 Prior Authorization for Appointed Counsel to Incur Expenses
§ 230.50 Proration of Claims
§ 230.53 Compensation of Co-Counsel
§ 230.56 Substitution of Counsel
§ 230.60 Attorney Compensation for Travel Time
§ 230.63 Reimbursable Out-of-Pocket Expenses
§ 230.66 Non-Reimbursable Expenses
§ 230.70 Writ of Certiorari
§ 230.73 Interim Payments to Counsel
§ 230.76 Record Keeping
§ 230.80 Annual Report of Attorney Compensation Exceeding 1,000 Hours
Forms for the compensation and reimbursement of expenses to appointed counsel, together with instructions for their use, may be found on the public judiciary website. A copy of all supporting documents that itemize or expand the amounts shown on the face of Form CJA 20 must be attached.
(a) Vouchers should be submitted no later than 45 days after the final disposition of the case, unless good cause is shown. The clerks of the concerned courts should ensure that attorneys comply with the prescribed limits. Every effort should be made to have counsel submit the claim as soon as possible upon completion of services rendered.
(b) Absent extraordinary circumstances, judges should act upon panel attorney compensation claims within 30 days of submission.
(a) Except in federal capital prosecutions and in death penalty federal habeas corpus proceedings, compensation paid to appointed counsel for time expended in court or out of court or before a U.S. magistrate judge may not exceed the rates in the following table. For information on compensation of counsel in federal capital cases and death penalty federal habeas corpus proceedings, see: Guide, Vol 7A, § 630.
|If services were performed between...||The maximum hourly rate is...|
|03/23/2018 to present||$140|
|05/05/2017 through 03/22/2018||$132|
|01/01/2016 through 05/04/2017||$129|
|01/01/2015 through 12/31/2015||$127|
|03/01/2014 through 12/31/2014||$126|
|09/01/2013 through 02/28/2014||$110|
|01/01/2010 through 08/31/2013||$125|
|03/11/2009 through 12/31/2009||$110|
|01/01/2008 through 03/10/2009||$100|
|05/20/2007 through 12/31/2007||$94|
|01/01/2006 through 05/19/2007||$92|
|05/01/2002 through 12/31/2005||$90|
(b) For rates applicable to services performed prior to May 1, 2002 for non-capital cases, please contact the AO's Defender Services Office, Legal and Policy Division Duty Day Attorney, at 202-502-3030 or via email at DSO_LPD@ao.uscourts.gov.
Under 18 U.S.C. § 3006A (d)(1), the Judicial Conference is authorized to increase annually all hourly rate maximums by an amount not to exceed the federal pay comparability raises given to federal employees. Hourly rate maximums will be adjusted automatically each year according to any federal pay comparability adjustment, contingent upon the availability of sufficient funds. The new rates will apply with respect to services performed on or after the effective date.
(a) In General
All compensation limits apply to each attorney in each case.
(b) Federal Death Penalty Cases and Federal Capital Habeas Corpus Proceedings
The case compensation limits are not applicable in federal death penalty cases and federal capital habeas corpus proceedings. See: Guide, Vol 7A, § 630.10.20.
(c) Excess Compensation Vouchers
(1) As further explained in § 230.23.40, the CJA places limitations on the general authority of presiding judicial officers to unilaterally approve attorney compensation.
(2) Payments above case compensation limits referred to in § 230.23.20 may be authorized when certified by the presiding judicial officer and approved by the chief judge of the circuit. The chief judge of the circuit is permitted to delegate this approval authority to another active or senior circuit judge.
(3) Presiding judicial officers should certify excess compensation payments to counsel whenever in their judgment the case involves extended or complex representation and the amount certified is necessary to provide fair compensation. See: § 230.23.40.
(d) Limitations Inapplicable to Expense Reimbursement
Case compensation limits apply only to attorney fees. There is no limit on the presiding judicial officer's authority to approve the reimbursement of expenses of counsel, and the chief judge of the circuit has no role in authorizing the payment of such expenses. For an explanation of reimbursable out-of-pocket expenses, see: § 230.63; but see: § 230.46 (Prior Authorization for Appointed Counsel to Incur Expenses).
(e) Change in Offense Classification Level
If a case is disposed of at an offense level lower than the offense originally charged, the compensation maximum is determined by the higher offense level.
(f) More than One Counsel
In difficult cases in which the court finds it necessary to appoint more than one attorney, the limitations apply separately to each attorney.
(g) Ancillary Matters
Representation in ancillary matters is compensable as part of the representation in the principal matter for which counsel has been appointed, and is not considered a separate appointment for which a separate compensation maximum would apply.
(h) Increases to the Maximum Compensation Rate
Under 18 U.S.C. § 3006A(d)(2), the attorney case compensation maximums increase "simultaneously" with aggregate changes in the maximum attorney hourly compensation rate. Current case maximum amounts are set forth below in § 230.23.20.
For work performed on or after March 23, 2018, the case compensation maximums are as follows:
If the case is a...
|the case maximum is...|
|(a) Felony (except federal capital prosecutions)||
$10,900 for trial court level
$7,800 for appeal
|(b) Misdemeanors (including petty offenses (class B or C misdemeanors or infractions) as set forth in ) 18 U.S.C. § 3006A(a)(2)(A)))||
$3,100 for trial court level
$7,800 for appeal
|(c) Proceedings under 18 U.S.C. § 4106A (in connection with paroled prisoners transferred to the United States)||
$2,300 for representation before the U.S. Parole Commission
$7,800 for appeal
|(d) Proceedings under 18 U.S.C. § 4107 or § 4108 (for counsel and guardians ad litem providing services in connection with prisoner transfer proceedings). Note: For information on appointment of counsel or guardians ad litem under 18 U.S.C. § 4109, see: Guide, Vol 7B (International Prisoner Transfer Proceedings).||$3,100 for each consent verification proceeding|
|(e) Pre-Trial Diversion||
$10,900 if offense alleged by the U.S. attorney is a felony
$3,100 if offense alleged by the U.S. attorney is a misdemeanor
|(f) Proceedings under 18 U.S.C. § 983 (for services provided by counsel appointed under 18 U.S.C. § 983(b)(1) in connection with certain judicial civil forfeiture proceedings)||
$10,900 for trial court level
$7,800 for appeal
|(g) Non-Capital Post-Conviction Proceedings under 28 U.S.C. § 2241, § 2254 or § 2255||
$10,900 for trial court level
$7,800 for appeal
|(h) Proceedings to Protect Federal Jurors Employment under 28 U.S.C. § 1875||
$10,900 for trial court level
$7,800 for appeal
(i) Other Representations Required or Authorized by the CJA
Note: This category includes but is not limited to the following representations:
(1) probation violation;
(2) supervised release hearing (for persons charged with a violation of supervised release or facing modification, reduction, or enlargement of a condition or extension or revocation of a term of supervised release);
(4) material witness in custody;
(5) mental condition hearings under 18 U.S.C. chapter 313 (except for hearings under 18 U.S.C. § 4241 and § 4244, which are considered part of the case in chief with no separate compensation maximums applying. (For a chart detailing the treatment for the purpose of compensation of representation at each hearing under 18 U.S.C. chapter 313, see: Guide, Vol 7A, § 220.30(f));
(6) civil or criminal contempt (where the person faces loss of liberty);
(7) witness (before a grand jury, a court, the Congress, or a federal agency or commission which has the power to compel testimony, where there is a reason to believe either before or during testimony, that the witness could be subject to a criminal prosecution, a civil or criminal contempt proceeding, or face loss of liberty); and
(8) international extradition (under 18 U.S.C. chapter 209).
$2,300 for trial court level
$2,300 for each level of appeal
For work performed prior to March 23, 2018, the case compensation maximums are as follows:
The case maximum if a case is a...
|And services were completed...|
|10/13/2008 - 3/10/2009||3/11/2009 - 12/31/2009||1/1/2010 - 2/28/2014||3/1/2014 - 12/31/2014||1/1/2015 - 12/31/2015||1/1/2016-5/4/2017||5/5/2017-3/22/2018|
|Felony (including pre-trial diversion of alleged felony)||$7,800||$8,600||$9,700||$9,800||$9,900||$10,000||$10,300|
|Misdemeanor (including pre-trial diversion of alleged misdemeanor)||$2,200||$2,400||$2,800||$2,800||$2,800||$2,900||$2,900|
|Proceeding under 18 U.S.C. § 4106A||$1,700||$1,800||$2,100||$2,100||$2,100||$2,100||$2,200|
|Proceeding under 18 U.S.C. § 4107 or § 4108 (for each verification proceeding)||$2,200||$2,400||$2,800||$2,800||$2,800||$2,900||$2,900|
|Proceeding under 18 U.S.C. § 983||$7,800||$8,600||$9,700||$9,800||$9,900||$10,000||$10,300|
|Post-conviction proceeding under under 28 U.S.C. § 2241, § 2254 or § 2255||$7,800||$8,600||$9,700||$9,800||$9,900||$10,000||$10,300|
|Proceeding under 28 U.S.C. § 1875||$7,800||$8,600||$9,700||$9,800||$9,900||$10,000||$10,300|
|Appeal from felony, misdemeanor, proceeding under 18 U.S.C. § 4106A, 18 U.S.C. § 983, post-conviction proceeding under 28 U.S.C. § 2241, § 2254 or § 2255, and 28 U.S.C. § 1875||$5,600||$6,100||$6,900||$7,000||$7,100||$7,200||$7,300|
|Other representation required or authorized by the CJA (including, but not limited to probation, supervised release hearing, material witness, grand jury witness)||$1,700||$1,800||$2,100||$2,100||$2,100||$2,100||$2,200|
|Appeal of other representation||$1,700||$1,800||$2,100||$2,100||$2,100||$2,100||$2,200|
For inquiries concerning case compensation maximums, contact the AO's Defender Services Office, Legal and Policy Division Duty Day Attorney, at 202-502-3030 or via email at DSO_LPD@ao.uscourts.gov.
Payments in excess of CJA compensation maximums may be made to provide fair compensation in cases involving extended or complex representation when so certified by the court or U.S. magistrate judge and approved by the chief judge of the circuit (or by an active or senior circuit judge to whom excess compensation approval authority has been delegated).
(b) Extended or Complex Cases
The approving judicial officer should first make a threshold determination as to whether the case is either extended or complex.
(1) If the legal or factual issues in a case are unusual, thus requiring the expenditure of more time, skill, and effort by the lawyer than would normally be required in an average case, the case is "complex."
(2) If more time is reasonably required for total processing than the average case, including pre-trial and post-trial hearings, the case is "extended."
(c) Determining Fair Compensation
After establishing that a case is extended or complex, the approving judicial officer should determine if excess payment is necessary to provide fair compensation. The following criteria, among others, may be useful in this regard:
- responsibilities involved measured by the magnitude and importance of the case;
- manner in which duties were performed;
- knowledge, skill, efficiency, professionalism, and judgment required of and used by counsel;
- nature of counsel's practice and injury thereto;
- any extraordinary pressure of time or other factors under which services were rendered; and
- any other circumstances relevant and material to a determination of a fair and reasonable fee.
Courts are encouraged to use case-budgeting techniques in representations that appear likely to become or have become extraordinary in terms of potential cost (ordinarily, a representation in which attorney hours are expected to exceed 300 hours or total expenditures are expected to exceed 300 times the prevailing CJA panel attorney non-capital hourly rate, rounded up to the nearest thousand, for appointed counsel and services other than counsel for an individual CJA defendant).
(a) If a court determines that case budgeting is appropriate (either on its own or upon request of counsel), counsel should submit a proposed initial litigation budget for court approval, subject to modification in light of facts and developments that emerge as the case proceeds.
(b) Case budgeting forms (Forms CJA 28A — CJA 28H), together with instructions for their use, may be found on the public judiciary website.
(c) Case budgets should be submitted ex parte and filed and maintained under seal.
(d) For general information on case budgeting principles relating to capital cases, see: Guide, Vol 7A, § 640.
(a) Recognizing that investigative, expert, and other services may be required before there is an opportunity for counsel to prepare a case budget or for the court to approve it, courts should act upon requests for services where prompt authorization is necessary for adequate representation.
(b) Courts, in examining the case budget, may reconsider amounts authorized for services before the budget's approval; however, courts must not rescind prior authorization where work has already been performed.
(a) Claim for Less than the Case Compensation Maximum
In any case in which the total compensation claimed is less than the statutory case compensation maximum, counsel may be required to submit a memorandum supporting and justifying the compensation claimed, when called for by local rule, standing order, or by the presiding judicial officer.
(b) Claim for More than the Case Compensation Maximum
(1) In any case in which the total compensation claimed is in excess of the statutory case compensation maximum, counsel will submit with the voucher a detailed memorandum supporting and justifying counsel's claim that:
- the representation given was in an extended or complex case (see: § 230.23.40(b)), and
- the excess payment is necessary to provide fair compensation (see: § 230.23.40(c)).
(2) Upon preliminary approval of such claim, the presiding judicial officer should furnish to the chief judge of the circuit a memorandum containing the recommendation and a detailed statement of reasons.
§ 230.33.10 Standard for Voucher Review
Voucher cuts should be limited to:
(1) Mathematical errors;
(2) Instances in which work billed was not compensable;
(3) Instances in which work was not undertaken or completed; and
(4) Instances in which the hours billed are clearly in excess of what was reasonably required to complete the task.
See: JCUS-SEP 2018, p. 42. For guidance on problems related to CJA voucher cutting, see: 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, pp. 96-103.
§ 230.33.20 Impact of an Appropriation Shortfall on Voucher Review
Vouchers should not be delayed or reduced for the purpose of diminishing Defender Services program costs in response to adverse financial circumstances.
§ 230.33.30 Notification of Proposed Reduction of CJA Compensation Vouchers
(a) The CJA provides that the reviewing judge must fix the compensation and reimbursement to be paid to appointed counsel. If the court determines that a claim should be reduced, appointed counsel should be provided:
- prior notice of the proposed reduction with a brief statement of the reason(s) for it, and
- an opportunity to address the matter.
(b) Notice need not be given to appointed counsel where the reduction is based on mathematical or technical errors.
(c) Nothing contained in this guideline should be construed as requiring a hearing or as discouraging the court from communicating informally with counsel about questions or concerns in person, telephonically, or electronically, as deemed appropriate or necessary.
(a) An attorney appointed under the CJA may not accept a payment from or on behalf of the person represented without authorization by a U.S. district, circuit, or magistrate judge on Form CJA 7.
(b) If such payment is authorized, it should be deducted from the fee to be approved by the court under 18 U.S.C. § 3006A(d). The combined payment to any one attorney for compensation from both the person represented and the CJA is subject to applicable dollar limitations, unless excess compensation is approved under 18 U.S.C. § 3006A(d)(3).
(c) When the court determines that a person who received representation under the CJA was financially ineligible for those services at the time they were rendered, and directs that the person reimburse the government, the payment should be made by check or money order to the clerk of court for deposit into the Treasury. Such funds will be credited to the Defender Services appropriation.
(d) Under 18 U.S.C. § 3006A(f), a judicial officer is not authorized to require reimbursement as a condition of probation, and the Judicial Conference position is that reimbursement of the cost of representation under the CJA should not be made a condition of probation under any other authority. See: JCUS-MAR 85, p. 31.
U.S. magistrate judges may only approve vouchers for services rendered in connection with a case disposed of entirely before the U.S. magistrate judge.
Court plans may require advance authorization for such items as counsel's expenses over stipulated amounts or counsel's travel in excess of stipulated distances.
(a) When a defendant is charged in one indictment with severable counts, one voucher should be submitted and one maximum applied under 18 U.S.C. § 3006A(d)(2), whether or not the counts are severed for trial.
(b) When a defendant is charged in two or more indictments (other than a superseding indictment or information), a separate voucher should be submitted, and a separate maximum applied under 18 U.S.C. § 3006A(d)(2), for each indictment, whether or not the indictments are consolidated for trial.
(c) Where single counsel is appointed to represent multiple defendants, separate vouchers should be submitted, and a separate maximum applied under 18 U.S.C. § 3006A(d)(2), for each defendant represented.
(d) Whenever appointed counsel submit separate vouchers, as provided by this section, time spent in common on more than one indictment or case must be prorated among the indictments or cases on which the time was spent, and each indictment or case must be cross-referenced on the supporting materials to the vouchers. Time spent exclusively on any one indictment or case must properly be charged on the voucher for that indictment or case.
(e) 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 on behalf of more than one client). Double billing of time or expenses is prohibited (e.g., billing the same travel time or expenses to more than one representation).
(f) While time spent in common on more than one CJA representation must be prorated, the entire amount of travel or other expenses applicable to more than one CJA representation must be billed to one representation. The supporting materials to the voucher on which the expenses are billed must cross-reference the other CJA representations.
(g) If the attorney 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 attorney must report such information so that the court can determine whether, in fairness to counsel, the time or expenses should be apportioned and the attorney compensated for the time or expenses reasonably attributable to the CJA.
(1) The attorney should explain the rationale for billing under the CJA, and the court may conduct a further inquiry.
(2) 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 attorney's duties under the CJA in relation to the time or expenses expended furthering other purposes;
- the significance to the CJA representation of the duties performed or expenses incurred; and
- the likelihood that the attorney would have performed the services or incurred the expenses under the CJA in the absence of the other purposes.
(h) Proration of time among CJA representations must not result in an appointed counsel billing a larger amount than would have been billed if all the time was assigned to one representation.
(b) However, an appointed counsel may claim compensation for services furnished by a partner or associate or, with prior authorization by the court, counsel who is not a partner or associate, within the maximum compensation allowed by the CJA, separately identifying the provider of each service.
(a) In an extremely difficult case where the court finds it in the interest of justice to appoint an additional attorney, each attorney is eligible to receive the maximum compensation allowable under the CJA.
(b) The finding of the court that the appointment of an additional attorney in a difficult case was necessary and in the interest of justice must appear on the Order of Appointment. For appointment of more than one attorney in capital cases, see: Guide, Vol. 7A, § 620.10.
If an attorney is substituted for an attorney previously appointed for a defendant in the same case, the total compensation paid to both attorneys may not exceed the statutory maximum for one defendant, unless the case involves extended or complex representation. In such cases, vouchers for attorney's services will not be approved by a judicial officer until the conclusion of the trial so that the judicial officer may make such apportionment between the attorneys as may be just.
(a) Compensation must be approved for time spent in necessary and reasonable travel.
(b) Ordinarily, compensable time for travel includes only those hours actually spent in or awaiting transit. Therefore, if a trip necessarily and reasonably requires overnight lodging, compensable travel time to the destination from the claimant's office would terminate upon arrival and check-in at the hotel or other place of accommodation and would include travel time returning directly to the claimant's office from said destination.
(c) Compensation for travel time is paid at a rate not to exceed the rate provided in 18 U.S.C. § 3006A(d) for "time reasonably expended out of court."
Out-of-pocket expenses reasonably incurred may be claimed on the voucher, and must be itemized and reasonably documented. Expenses for investigations or other services under 18 U.S.C. § 3006A(e) are not considered out-of-pocket expenses.
(a) Generally, court reporters or reporting services which furnish court authorized transcripts in CJA cases claim and receive compensation for their services on the Form CJA 24 (Authorization and Voucher for Payment of Transcript) See: Guide, Vol 7A, § 320.30. While this is the preferred method for payment of transcripts, if assigned counsel has elected to pay for the court authorized transcripts "out-of-pocket," the cost may be claimed as a reimbursable expense, as provided for in 18 U.S.C. § 3006A(d)(1). However, unlike most reimbursable expenses, which should be claimed on the Form CJA 20 (Appointment of and Authority to Pay Court Appointed Counsel), reimbursement to the attorney who has paid for the transcript as an "out-of-pocket" expense should be claimed on a Form CJA 24.
(b) The cost of transcribing depositions in criminal cases is the responsibility of the Department of Justice under Rule 17(b) of Fed. R. Crim. P.
Exception: When the witness is a defense expert, the expert is paid out of CJA funds (53 Comp. Gen. 638 (1974)).
(a) The cost of use, by appointed counsel, of computer-assisted legal research services, may be allowed as a reimbursable out-of-pocket expense, provided that the amount claimed is reasonable.
(b) Whenever appointed counsel incurs charges for computer-assisted legal research, counsel should attach to the compensation voucher a copy of the bill and receipt for the use of the legal research services or an explanation of the precise basis of the charge (e.g., indicating the extent to which it was derived by proration of monthly charges, or by charges identifiable to the specific research).
(c) If the amount claimed is more than $500 or if it includes costs for downloading or printing, counsel should include a brief statement of justification.
(a) Travel by privately owned automobile should be claimed at the mileage rate currently prescribed for federal judiciary employees who use a private automobile for conduct of official business. Parking fees, ferry fares, and bridge, road, and tunnel tolls may also be claimed. Transportation other than by privately owned automobile should be claimed on an actual expense basis.
(b) Per diem in lieu of subsistence is not allowable, since the CJA provides for reimbursement of expenses actually incurred. Therefore, counsel's expenses for meals and lodging incurred in the representation of the defendant would constitute reimbursable "out-of-pocket" expenses.
(c) In determining whether actual expenses incurred are "reasonable," counsel should be guided by the prevailing limitations placed upon travel and subsistence expenses of federal judiciary employees in accordance with existing judiciary travel regulations.
(d) Government travel rates at substantial reductions from ordinary commercial rates may be available from common carriers for travel authorized by the court in connection with representation under the CJA. To obtain such rates, attorneys must contact the clerk of the court and obtain prior approval from the presiding judicial officer.
(a) Where it is considered necessary and appropriate in a specific case, the presiding judge or U.S. magistrate judge may, in consultation with the AO's Defender Services Office, arrange for interim reimbursement to counsel of extraordinary and substantial expenses incurred in providing representation in a case.
(b) Interim reimbursement should be authorized when counsel's reasonably-incurred out-of-pocket expenses for duplication of discovery materials made available by the prosecution exceed $500.
(a) Courts are authorized to reimburse panel attorneys for expenses reasonably incurred in defending actions alleging malpractice in furnishing representational services under the CJA. See: 18 U.S.C. § 3006A(d)(1), as amended by the Federal Courts Improvement Act of 2000, Pub. L. No. 106-518, which covers expenses incurred on or after its effective date of Nov. 13, 2000.
(b) The total reimbursement must not exceed the deductible amount of counsel's professional liability insurance policy or $5,000, whichever is less. Expenses qualifying for reimbursement may include, but are not limited to:
- the costs of transcripts;
- witness fees and costs; and
- attorney fees.
(c) In determining reasonable attorney fees for this purpose, CJA rates are inapplicable.
(d) Compensation for representing oneself in defending the action alleging malpractice, or, if represented by counsel, for time spent assisting that counsel in defending the action, is not reimbursable.
(e) No reimbursement will be made if a judgment of malpractice is rendered against the attorney; in view of this prohibition, no reimbursement should be provided until the malpractice claim is resolved.
Other reimbursable expenses include:
- telephone toll calls;
- photographs; and
- copying (except printing — see: § 230.66.40).
(a) General office overhead includes general office expenses that would normally be reflected in the fee charged to the client. The statutory fee is intended to include compensation for these general office expenses.
(b) Except in extraordinary circumstances (see: Guide, Vol. 7A, § 320.70.30), whether work is performed by counsel or other personnel, the following expenses associated with CJA representation are not reimbursable:
- telephone service; and
(a) The cost of items of a personal nature purchased for or on behalf of the person represented are not reimbursable under the CJA. Such items include:
- purchasing new clothing or having clothing cleaned;
- getting a haircut;
- furnishing cigarettes, candy or meals, etc.
(b) The cost of services of a personal nature and expenses incidental thereto which cannot be considered legal representation are not compensable under the CJA. Such services include:
- assisting the defendant in the disposition of the defendant's personal property;
- arranging for the placement of minor children of the defendant;
- assisting the defendant in executing the conditions of probation;
- providing legal assistance in matters unrelated to the litigation of the case, although incidental to the defendant's arrest, etc.
Attorneys are not required to pay a filing fee in a CJA case, as such payment and reimbursement thereof is tantamount to the government billing itself to accomplish a transfer of appropriated funds into the General Fund of the Treasury.
(a) The expense of printing briefs, regardless of the printing method utilized, is not reimbursable.
(b) The cost of photocopying or similar copying service is reimbursable.
Taxes paid on attorney compensation received under CJA, whether based on income, sales or gross receipts, are not reimbursable expenses.
Counsel's time and expenses involved in the preparation of a petition for a writ of certiorari are considered as applicable to the case before the U.S. court of appeals, and should be included on the voucher for services performed in that court.
(a) Where it is considered necessary and appropriate in a specific case, the presiding trial judge may arrange for periodic or interim payments to counsel.
(b) Appx 2C (Procedures for Interim Payments to Counsel in Non-Death Penalty Cases) contains instructions on the procedures for effecting interim payments to counsel, and a sample memorandum order on this subject that provides for two alternative payment methods.
(c) The payment options provided in Appx 2C are designed to strike a balance between the interest in relieving court-appointed attorneys of financial hardships in extended or 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.
(d) Other interim payment arrangements which effectuate this balance may be devised in consultation with the AO's Defender Services Office.
Presiding judicial officers are urged to permit interim payments in death penalty cases. Since the Anti-Drug Abuse Act of 1988 effectively repealed the CJA hourly rates and case maximums with respect to death penalty cases, a separate set of procedures and a separate memorandum order should be used in those cases. These procedures and a sample memorandum order are set forth in Appx 2D (Procedures for Interim Payments to Counsel in Death Penalty Cases).
Appointed counsel must maintain contemporaneous time and attendance records for all work performed, including work performed by associates, partners, and support staff, as well as expense records. Such records are subject to audit and must be retained for three years after approval of the final voucher for an appointment.
Not later than three months after the end of each fiscal year, the AO's Defender Services Office will prepare reports listing all attorneys who have claimed compensation of more than 1,000 hours of services in the preceding fiscal year. The chief judge of each court of appeals and each district court will receive a copy of the report regarding attorneys within that district or circuit.
Appx 2A: Model Plan for Implementation and Administration of the Criminal Justice Act (pdf)(word)
Appx 2C: Procedures for Interim Payments to Counsel In Non-Death Penalty Cases (pdf)(word)
Appx 2D: Procedures for Interim Payments to Counsel in Death Penalty Cases (pdf)
Last revised (Transmittal 07-011) February 6, 2019