In Hooper v. Jones, ___ Fed.Appx. ___, 2013 WL 4734106 (10th Cir. Sept. 4, 2013), the Tenth Circuit (Tymkovich, with Anderson and Matheson) sided with the Fifth Circuit over the Eleventh Circuit and ruled that the denial of compensation by the district court for time spent litigating under 42 U.S.C. § 1983 is an appealable order under 28 U.S.C. § 1291. Compare Clark v. Johnson, 278 F.3d 459, 460-61 (5th Cir. 2002) with Gary v. Warden, 686 F.3d 1261, 1269-71 & n.21 (11th Cir. 2012), cert. denied, 133 S.Ct. 1734 (2013). "We see no meaningful distinction, for jurisdictional purposes, between the question of whether counsel’s CJA appointment encompassed and hence permitted compensation for the pursuit of a lethal injection challenge under § 1983, and the controversy in Harbison [v. Bell, 129 S.Ct. 1481 (2009)] as to whether counsel’s CJA appointment encompassed the pursuit of relief in a state clemency proceeding."
As to the merits, counsel had been appointed in connection with Michael Hooper’s federal habeas proceeding. He later filed a § 1983 action seeking injunctive relief to stay Hooper’s execution until a constitutionally permissible lethal injection protocol was provided. According to the panel, this was an appropriate procedure seeking a stay of execution as permitted by CJA, 18 U.S.C. § 3599(e).