Gaskins v. BFI Waste Services, LLC , 281 F. App'x 255 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1001
DELBERT GASKINS; ARNOLD WHITE,
Plaintiffs - Appellees,
v.
BFI WASTE SERVICES, LLC,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:02-cv-01832-GBL)
Argued: January 29, 2008 Decided: June 16, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Raymond Charles Baldwin, SEYFARTH & SHAW, L.L.P.,
Washington, D.C., for Appellant. Christopher Edwin Brown,
Alexandria, Virginia, for Appellees. ON BRIEF: Jessica G. Taverna,
SEYFARTH & SHAW, L.L.P., Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant BFI Waste Services, LLC, appeals from the district
court’s December 8, 2006 Memorandum Order awarding costs and
attorney’s fees to plaintiffs Arnold White and Delbert Gaskins.
See White v. BFI Waste Servs., LLC, No. 1:02-cv-01832 (E.D. Va.
Dec. 8, 2006) (the “Award”).1 White and Gaskins prevailed, after
a jury trial, on race-based hostile work environment claims they
pursued against BFI under both the Civil Rights Act of 1866, 42
U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17. As a result, they were entitled to
utilize the applicable fee-shifting provisions of Title 42 and
recover their costs and attorney’s fees from BFI. On appeal, BFI
challenges the propriety of the Award, contending that the
plaintiffs’ fee petition was not timely filed. As explained below,
we vacate the Award and remand.2
1
The Award may be found at J.A. 221-42. (Citations herein to
“J.A. ” refer to the contents of the Joint Appendix filed in this
appeal.)
2
Because we vacate the Award, we need not reach BFI’s
alternative contentions in this appeal: that, if an award of
attorney’s fees was appropriate, the district court abused its
discretion in making the Award because the plaintiffs failed to (1)
properly establish the applicable hourly rates, or (2) provide
adequate documentation of time expended.
2
I.
In 2002, White and Gaskins initiated separate civil rights
complaints against BFI, their employer, alleging that they had been
subjected to race discrimination, and asserting claims under § 1981
and Title VII. In disposing of those claims, the district court,
in June 2003, first granted summary judgment to BFI in White’s
case. In July 2003, the court made a separate summary judgment
award to BFI in Gaskins’s case. We consolidated their subsequent
appeals and, by our decision of July 14, 2004, partially reversed
the district court. See White v. BFI Waste Servs., LLC, 375 F.3d
288 (4th Cir. 2004) (affirming summary judgment awards on racially
discriminatory compensation claims, but reversing on claims of
racially hostile work environment).
On remand, the hostile work environment claims were tried in
December 2004 before a jury in Alexandria, and a verdict for both
compensatory and punitive damages was returned in favor of the
plaintiffs. The verdict awarded White and Gaskins $600,000 each in
compensatory damages, plus $2 million each in punitive damages.
BFI then moved for judgment as a matter of law under Federal Rule
of Civil Procedure 50(b), and alternatively for a new trial nisi
remittitur under Rule 59. In its Memorandum Opinion and Order of
June 17, 2005 (the “Judgment”), the district court denied the Rule
50(b) motion, but granted in part the Rule 59 new trial motion. To
avoid an improper double recovery to the plaintiffs on the § 1981
3
and Title VII claims, the court reduced the compensatory damage
awards to $300,000 each, and attributed the awards to the
plaintiffs’ § 1981 claims. The court also reduced the punitive
damage awards to $600,000 each. The plaintiffs did not file a
petition for costs and attorney’s fees within fourteen days of the
entry of the Judgment, however, as required by the operative
version of Rule 54(d)(2)(B) (mandating that, “[u]nless otherwise
provided by statute or order of the court, the motion [for costs
and attorney’s fees] must be filed no later than 14 days after
entry of judgment”).3
With no fee petition having been filed, BFI appealed from the
Judgment on July 15, 2005, and the plaintiffs filed timely cross-
appeals. On May 23, 2006, in disposing of the second round of
appeals in this litigation, we determined that the evidence was
insufficient to support the punitive damage awards but otherwise
affirmed. See White v. BFI Waste Servs., LLC, 198 F. App’x 283
(4th Cir. 2006) (unpublished per curiam). On July 18, 2006, we
denied the parties’ cross-petitions for rehearing en banc.
Immediately thereafter, on July 26, 2006, our mandate issued,
remanding the case to the district court.
On August 25, 2006, the district court, acting sua sponte,
entered an order directing the plaintiffs to move for costs and
3
Rule 54 was recently amended, effective December 1, 2007, as
part of the general restyling of the Civil Rules.
4
attorney’s fees by September 5, 2006, and scheduling a hearing on
any such motion for October 13, 2006 (the “Sua Sponte Order”).
Responding thereto, the plaintiffs, on September 5, 2006, filed for
the first time a petition for costs and attorney’s fees, seeking an
award under 42 U.S.C. § 1988(b) (the “Fee Petition”). The Fee
Petition — requesting more than $427,000 — was filed more than
fourteen months after the entry of Judgment on June 17, 2005.4
In its opposition to the Fee Petition, BFI urged the district
court to summarily reject it, because it had not been timely filed
under Rule 54(d)(2)(B). In reply, the plaintiffs requested the
court to deem the filing deadline extended by its Sua Sponte Order.
They also asserted that their Fee Petition had been timely filed,
in any event, under the excusable neglect provision of Rule
6(b)(2).5 In so asserting, the plaintiffs relied on the Supreme
4
Although prevailing parties on § 1981 and Title VII claims
may be awarded costs and attorney’s fees under the fee-shifting
provisions of 42 U.S.C. §§ 1988(b) and 2000e-5(k), respectively,
the plaintiffs nevertheless entered into contingent fee
representation agreements with their counsel. Pursuant thereto,
they agreed to compensate their lawyers with 40% of any recovery
from BFI “by settlement or otherwise.” J.A. 212. Independent of
the Fee Petition, the plaintiffs have paid their counsel at least
$240,000 under the contingent fee agreements. At oral argument in
this appeal, counsel represented that, if the Award is sustained,
the contingent fee payments will be returned to the plaintiffs.
5
Under the operative version of Rule 6(b)(2), relating to the
enlargement of specified time periods for action, a trial court may
“in its discretion . . . upon motion made after the expiration of
the specified period permit the act to be done where the failure to
act was the result of excusable neglect.” Like Rule 54, Rule 6 was
amended, effective December 1, 2007, as part of the general
restyling of the Civil Rules.
5
Court’s explanation and application of the excusable neglect
doctrine in Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380 (1993), maintaining that their
neglect with respect to the Fee Petition’s tardy filing was
excusable for at least three reasons: (1) BFI had not been
prejudiced by the tardy filing; (2) the filing delay did not have
an appreciable impact on the proceedings; (3) the lawyers acted in
good faith when they mistakenly interpreted Rule 54(d)(2)(B) to
authorize their Fee Petition to be filed after resolution of the
appeal process. At the Fee Petition hearing conducted on October
13, 2006, BFI argued that the Fee Petition could not, simply on the
basis of counsel’s error in interpreting Rule 54(d)(2)(B), be
considered or ruled upon by the court. BFI maintained that a
“misreading [of] the rule is not excusable neglect,” and that the
court’s Sua Sponte Order “would not have mitigated or modified the
unambiguous requirements of Rule 54.” J.A. 200.
In making the Award on December 8, 2006, the district court
rejected BFI’s position and ruled that the Sua Sponte Order
satisfied the requirement of an “order” under Rule 54(d)(2)(B),
thus rendering the fourteen-day deadline of the Rule inapplicable
to the Fee Petition. The court made no assessment or determination
of the Rule 6(b)(2) excusable neglect question, however, and
proceeded to grant the Fee Petition and make the Award “because
[p]laintiffs timely filed the Petition pursuant to a Court order
6
[i.e., the Sua Sponte Order].” Award 6. The Award was for the
aggregate sum of $427,374 in costs and attorney’s fees. BFI has
appealed from the Award, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review for abuse of discretion a district court’s extension
of a filing deadline. See Thompson v. E.I. DuPont de Nemours &
Co., 76 F.3d 530, 532 (4th Cir. 1996). We exercise plenary review,
however, over legal interpretations of the applicable procedural
rules. See Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198,
203 (4th Cir. 2006) (observing that appellate review of legal
interpretations of federal procedural rules is de novo).
III.
BFI pursues two contentions on appeal. First, it maintains
that the district court erred in excusing the untimely filing of
the Fee Petition by characterizing its Sua Sponte Order as an
“order” within the meaning of Rule 54(d)(2)(B). Second, BFI
asserts that the court erred in ruling on the Fee Petition — filed
more than fourteen months out of time — without first making the
finding of excusable neglect mandated by Rule 6(b)(2). We examine
these contentions in turn.
7
A.
As explained above, pursuant to Rule 54(d)(2)(B), a fee
petition must be filed no later than fourteen days after entry of
judgment, “[u]nless otherwise provided by statute or order of the
court.” Significantly, the plaintiffs have conceded in their
appellate brief, and at oral argument as well, that their Fee
Petition was untimely filed, in that it was not submitted within
fourteen days of the entry of the Judgment. In their brief, the
plaintiffs acknowledge that, having “consulted [Rule 54(d)(2)(B)]
at the conclusion of the trial[, they] determined (although
incorrectly) that the entry of judgment that would trigger the 14-
day deadline for [their] Attorney’s Fee Petition would occur after
the resolution of the Appeal process and the entry of an amended
order.” Br. of Appellees 3. Nevertheless, the district court, in
making the Award, deemed its Sua Sponte Order to be an “order”
within the meaning of Rule 54(d)(2)(B). The Sua Sponte Order, as
a result, exempted the Fee Petition from the fourteen-day deadline
of Rule 54(d)(2)(B), and thus rendered it timely. As explained
below, we are, in these circumstances, unable to agree with the
district court.
The Sua Sponte Order was entered without any identifiable
legal basis, particularly in light of the language of Rule 6(b),
which controls the exercise of a trial court’s discretion to extend
the filing deadlines established by the applicable rules, including
8
Rule 54(d)(2)(B). See Maybin v. Northside Corr. Ctr., 891 F.2d 72,
74 (4th Cir. 1989) (“Rules of civil procedure must be considered in
relation to one another and construed together.”). Specifically,
the operative version of Rule 6(b) identifies only two
circumstances where a court may validly grant an extension of an
applicable filing deadline:
When by these rules . . . an act is required or allowed
to be done at or within a specified time, the court for
cause shown may at any time in its discretion (1) with or
without motion or notice order the period enlarged if
request therefor is made before the expiration of the
period originally prescribed or as extended by a previous
order, or (2) upon motion made after the expiration of
the specified period permit the act to be done where the
failure to act was the result of excusable neglect . . .
.
The filing of a fee petition plainly constitutes an act “required
. . . to be done . . . within a specified time” under Rule 6(b),
and Rule 54(d)(2)(B) mandates that such a filing must occur “no
later than 14 days after entry of judgment.” After the fourteen-
day deadline had expired, the district court was not empowered,
under the plain terms of Rule 6(b)(1), to extend that deadline on
its own motion. Rather, the court was only empowered to grant such
an extension under Rule 6(b)(2), upon a motion being made by the
plaintiffs that was supported by a showing of excusable neglect.
See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 226 (2d Cir.
2004) (rejecting proposition that Rule 54(d)(2)(B)’s “introductory
clause, ‘unless otherwise provided by statute or order of the
court,’ gives district courts carte blanche to extend the time to
9
move for attorneys’ fees after the deadline expires without having
to find ‘excusable neglect’ under Rule 6”); see also Barghout v.
Bureau of Kosher Meat & Food Control, No. 96-2366, 1998 WL 193106,
at *2-3 (4th Cir. Apr. 23, 1998) (unpublished per curiam)
(concluding that Rule 6(b) precluded court from granting untimely
fee petition, where petitioner failed to request enlargement of
time within Rule 54(d)(2)(B)’s fourteen-day deadline, and did not
thereafter move for extension based on excusable neglect).6
Because neither of the Rule 6(b) circumstances for a valid
extension of the fourteen-day filing deadline had occurred when the
Sua Sponte Order was entered, those authorities must control, and
the Sua Sponte Order was not an authorized extension order under
Rule 6(b).7
In these circumstances, the Sua Sponte Order simply did not
exempt the Fee Petition from the fourteen-day filing deadline
6
Notably, the fourteen-day deadline established by Rule
54(d)(2)(B) may be preempted by a local rule creating some
different time frame for the filing of fee petitions. See, e.g.,
Tancredi, 378 F.3d at 227. There is no such local rule in the
Eastern District of Virginia.
7
The scope and purpose of Rule 54(d)(2)(B) would be undermined
if district courts were authorized to consider untimely fee
petitions sua sponte, without first finding excusable neglect. See
Fed. R. Civ. P. 54 advisory committee’s note (explaining that Rule
54(d)(2)(B) time constraints promote fairness and judicial economy
by: (1) providing notice of fee claim to opposing party before
time for appeal elapses; (2) resolving fee disputes soon after
trial, while counsel’s performance is “freshly in mind”; and, (3)
consolidating appellate review of fee claims together with merits
of case).
10
mandated by Rule 54(d)(2)(B). The district court erred in
characterizing its Sua Sponte Order as an “order” within the
meaning of Rule 54(d)(2)(B), and the Fee Petition was thus untimely
filed.
B.
We turn finally to the issue, first raised by the parties
after entry of the Sua Sponte Order and the filing of the Fee
Petition, of whether the Fee Petition was viable under the
excusable neglect provision of Rule 6(b)(2). On this point, we are
confronted with the situation where, although the plaintiffs and
BFI made excusable neglect arguments in the district court, the
court made no assessment or ruling on the issue. That is, because
the court ruled that its Sua Sponte Order rendered the Fee Petition
timely, it had no reason to reach and address the excusable neglect
contentions. In this circumstance, we are unable to properly
assess the contentions of the parties on the excusable neglect
issue. We conclude, however, that the plaintiffs, in view of our
ruling concerning the Sua Sponte Order, should be accorded an
opportunity (if they so choose) to pursue their excusable neglect
contention in the district court. The legal authorities governing
the excusable neglect doctrine indicate that such a contention will
present obvious difficulties, however, and, on this record, the
plaintiffs will face an uphill battle. Our precedent has
cautioned, in the context of an untimely notice of appeal, that
11
“‘excusable neglect’ is not easily demonstrated, nor was it
intended to be.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d
530, 534 (4th Cir. 1996) (affirming refusal to grant enlargement of
time to file appeal under Appellate Rule 4(a)(1), because plaintiff
failed to show excusable neglect).
As the Supreme Court has recognized, “inadvertence, ignorance
of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect.” See Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993).
Nevertheless, the Court recognized that “it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’
and is not limited strictly to omissions caused by circumstances
beyond the control of the movant.” Id. The Pioneer Court
explained that the determination of whether lawyer neglect can be
deemed as “excusable” is “at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s
omission,” including “the danger of prejudice to the [opposing
party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether
it was within the reasonable control of the movant, and whether the
movant acted in good faith.” Id. at 395; see also id. at 398(finding no error when debtor’s failure to file timely claim was
deemed excusable, in the absence of “evidence of prejudice to
12
petitioner or to judicial administration . . ., or any indication
at all of bad faith”).
Obviously, a district court is vastly better positioned than
a court of appeals to first evaluate the relevant circumstances
concerning an excusable neglect determination — including an
assertion that the lawyers have mistakenly interpreted Rule
54(d)(2)(B) to authorize the filing of a fee petition within
fourteen days of the resolution of the appeal process. See Pincay
v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004) (concluding that
proper weighing of Pioneer’s equitable factors should be left “to
the discretion of the district court in every case”); see also
United States v. Brown, 133 F.3d 993, 997 (7th Cir. 1998) (“A
district court knows best the impact [an] error has on the court’s
operation and calendar. It knows the attorney and his motives, the
circumstances of the case and the judicial economy of excusing the
neglect.”).
In this case, there are potential competing interests to be
weighed concerning whether lawyer neglect should be deemed
excusable. For example, the plaintiffs’ lawyers should have known
the correct answer on the filing question — that the district
court’s resolution of BFI’s post-trial motions, on July 17, 2005,
constituted the entry of Judgment under Rule 54(d)(2)(B), and that
the Fee Petition was due within fourteen days thereof.
Nevertheless, there are other interests that might be taken into
13
account. For example, if the Fee Petition is denied on the sole
basis of its tardy filing:
• The plaintiffs would be denied their statutory
right to recover costs and attorney’s fees. And,
absent a recovery against their own counsel for
legal malpractice, they will have paid over
$240,000 to their lawyers under the contingent fee
agreements. See supra note 4;
• The plaintiffs’ lawyers would have prevailed in a
difficult and time-consuming lawsuit (involving
egregious conduct by BFI against White and
Gaskins), yet not be fully compensated for their
efforts, and perhaps be subjected to malpractice
claims; and
• BFI, the wrongdoer — having engaged in racially
hostile conduct against its employees — would
receive a substantial financial windfall, solely
due to the neglect of plaintiffs’ counsel.
On the other hand, of course, BFI has borne the expense of a
separate appeal of the Award, which — had the Fee Petition been
timely filed — could have been reviewed on appeal almost two years
ago. These circumstances, however, and perhaps others, are for the
district court to first evaluate. Although we are obligated to
vacate the Award, we are satisfied to leave to the district court
any determination of whether the plaintiffs are yet entitled to
recover costs and attorney’s fees.
14
IV.
Pursuant to the foregoing, we vacate the Award made by the
district court, and remand without prejudice to such other and
further proceedings, if any, that might be appropriate.
VACATED AND REMANDED
15