Preauthorization Policies & Steps for Appointed Counsel Cases in the Third & the Fifth District
A. Types of Expenses Requiring Preauthorization
Prior approval for any travel other than for oral argument must be obtained for Third and Fifth District cases. CCAP is authorized to process travel requests that do not exceed $600 for Third District cases only. In addition, statewide travel preapproval policies apply to prison visits and use of rental cars. (See Statewide Travel Guidelines)
- Translation Expenses
Prior approval for translator services must be obtained for Third and Fifth District cases. CCAP is authorized to process translator requests that do not exceed $300 for both courts.
- Habeas and Other Writ Work
Prior approval for all writ petition work and related expenses (beyond cursory inquiries with the client and/or trial attorney) must be obtained for Third and Fifth District cases. Counsel must move to expand their appointment and obtain preapproval from these courts to be compensated for this work outside the scope of their appointment. (See also Billing Habeas Time & Expenses memo (PDF).)
- Other Extraordinary Expenses
Preapproval is required before incurring any extraordinary expenses such as experts, investigators, unusual copying fees, legislative research service fees, etc. These kind of items are not currently within the scope of CCAP preauthorization authority.
B. Obtaining Preauthorization
For matters covered by CCAP preauthorization authority, write to the assigned CCAP buddy for the case. Successful requests include a detailed assessment of the elements outlined below. Missing information will necessitate a call from the CCAP buddy to appointed counsel for further information.
A request for prior approval not covered by CCAP preauthorization authority, or that at the outset is expected to exceed the maximum dollar limit of CCAP preauthorization authority, will be routed to the court. However, requests for preapproval are routed differently in Third and Fifth District cases. In the Third District, such requests should be first sent to CCAP for a recommendation on the request. The attorney should send CCAP the original with proof of service and five copies. CCAP will then forward the original request, the copies and a recommendation to the court for a ruling. In the Fifth District, send the request and copies directly to the court for a ruling.
C. Elements Needed to Assess a Preauthorization Request
- Economic Element
The request must take into account that all other economical means have been attempted, are not effective, or are not feasible. The courts expect that appointed counsel will have exhausted other more common means of communication or other process prior to seeking approval for an extraordinary cost.
Attorneys are also compensated for the most economical means of transit, regardless of the mode actually used. In determining the cost of travel, CCAP and the court will examine both the expense and the attorney time. When train or plane is the most economical, attorneys are not paid for the time actually in transit, as that time can be spent reading, etc.
- Cost Savings
If possible, the request should demonstrate a cost savings to the court. This can usually be demonstrated by laying out the actual and anticipated costs, versus doing it another way. For example, travel by plane may be more economical than travel by car for a long trip. By comparing the hours required to drive, the mileage, and accommodations for a long trip to a shorter drive to the airport, a quick flight, and rental car fees, the cost savings will be apparent.
- Estimations for Preapproval
If possible, counsel should estimate the total time necessary in their application to expand the scope of their appointment -- including all time and related expenses -- as compensation may be limited by the court's specific preapproval order and/or reasonableness. If the original preapproved amount will be exceeded for either time or expenses, counsel must seek further preapproval from these courts. At this time, CCAP does not have discretion to approve time or expenses not covered by the court’s preapproval order for petition work.
D. CCAP's Role & Limited Authority
- Court Policies Adhered To
For these purposes, CCAP stands in the shoes of the court; CCAP can preauthorize only what CCAP perceives the court would otherwise consider an appropriately incurred expense. The preapproval or recommendation CCAP makes must therefore meet all current court policies for expenditure of extraordinary expenses. CCAP cannot disregard current court policies. Questionable requests must be rejected and deferred to the court's authority.
- Habeas Investigation Not Within Scope of CCAP Preapproval Authority
The policy for both the Third and Fifth District Court of Appeal is that compensation for writ work requires preauthorization from the court. CCAP has not been given preauthorization authority to approve habeas investigation and petition work. The attorney’s de minimis time for preliminary investigation of habeas issues to support an expansion request should be claimed under Line #11 on the claim form.
For more information on compensation for habeas investigation and billing practice, see the Billing Habeas Time & Expenses memo (PDF).
Expansion requests that appear to be grounded in habeas investigation, rather than related to issues that can be raised on direct appeal, will be deferred to the court's authority. In the Third District, submit your written request to CCAP first for project input and recommendation to the court. Attorneys should submit the original with proof of service on the client and 5 copies to CCAP. CCAP will forward the original and the copies to the court along with the project's recommendation.
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