Guide to Case Management and Budgeting in Capital Habeas Cases

Beginning August 17, 2015, the Ninth Circuit’s Case Managing Attorneys will work with CJA-appointed counsel in the Central District of California to budget litigation fees and expenses in 28 U.S.C. § 2254 capital habeas corpus proceedings.  To this end, the Court has developed a universal fillable funding application form that will replace the Excel worksheets, Confidential Case Evaluation Form, Capital Habeas Counsel Rate Justification Worksheet, and attorney declarations previously submitted to the Court in support of a proposed budget.  In addition, the Court has moved away from the traditional Phase I-IV approach.  Instead, counsel will submit requests for funding for tasks that require completion within a discrete time period.  In the ordinary course, the timing parameters for a budget will be dictated by a Court scheduling or case management order.

The following procedures are to be followed for submission of funding applications:

1. If directed by a District Judge to submit a new budget or if counsel wishes to seek amendment of an existing budget, counsel shall download from the Court’s website a “Capital Habeas Funding Application.”  This fillable Word document will be used for all new or amended budget requests. A master copy of the form should be saved and continually updated whenever a new or amended funding application is submitted in the same case.
2. Counsel shall fill out the form completely, including the confidential case background information.  In the “Requested Attorney Hours” section, briefly explain in the “Justification” column how you developed the time estimates for each of the budget categories.  For example, X [number] visits with client for X hours each; X witness interviews for X hours each; X pages of core [or non-core] record to review.  In the legal research and writing section, Counsel shall estimate the time required to prepare each anticipated pleading and break down the time estimate for each pleading to the extent feasible (i.e., identify the number of claims, generally describe their complexity, and provide time estimates for researching/drafting each).  Counsel need not write at length but shall provide sufficient detail to justify the time requested.
3. The funding application should include an explanation of case-related issues only as they specifically relate to budgeting needs.
4. For cases on which the Federal Public Defender serves as lead or co-counsel, the “justification” column must also identify the tasks that will be undertaken by the FPD with respect to each budget category.
5. Pursuant to the Judicial Council of the Ninth Circuit’s Criminal Justice Act Policies and Procedures, appointed counsel should utilize associates, law clerks, paralegals, investigators, and other cost-effective service providers to minimize costs where the appointed attorneys’ expertise is not required.  If use of associates was previously authorized or is being requested, the hours counsel anticipates will be utilized by associates shall be included in the total hours requested for lead or co-counsel.  Do not include associates in the “Requested Service Providers” section of the form.
6. For service providers other than associates, counsel shall identify each in the “Requested Service Providers” section of the form, including the projected number of hours, the requested hourly rate, and any anticipated expenses.  Indicate in the “Justification” column whether funding for the requested provider was previously authorized in an earlier budget or whether this is a request for a new service provider.  For “new” requests, attach the service provider’s CV or resume to the budget form.
7. Compensation for independent contractor and in-house service providers may not exceed the maximum rates identified in the Judicial Council of the Ninth Circuit’s Criminal Justice Act Policies and Procedures without prior authorization and a showing of exceptional circumstances and documented need.  Requests to exceed maximum rates should be included in the “Justification” column of the “Requested Service Providers” section of the funding application.
8. Counsel shall transmit the completed form, along with the CV or resume of any newly requested service provider, to the Circuit Case Managing Attorneys at [email protected].  A Circuit Case Managing Attorney (CMA) will review the proposed budget and contact counsel with any suggested changes or adjustments. 
9. After consultation with the CMA, counsel shall print the form, attach the CV or resume of any newly requested service provider, and e-file the document with the Court using a face sheet indicating that the filing is a budget document being filed under seal pursuant to the case management order.  Please familiarize yourself with the Court’s recently amended local rules requiring the e-filing of sealed documents.  See L.R. 79-5.  When you e-file sealed budget documents, link them to the case management order as the authority for filing under seal.
10. The CMA will receive electronic notice of the filing through the Central District of California’s CM/ECF system and will then consult with the assigned Judicial Officer regarding the proposed budget and assist as requested with preparation of an authorized budget order.
11. Counsel may not exceed an authorized budget without first requesting amendment using the universal “Capital Habeas Funding Application” form and following the procedures as described herein.  Counsel shall closely monitor expended time and must prepare any proposed amendments to a budget far enough in advance to the give the Court an adequate opportunity to consider the request and issue a ruling thereon without impeding progress of the litigation.