                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 21, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 11-5018
                                            (D.C. No. 4:08-CV-00278-TCK-PJC)
    LINDSEY K. SPRINGER,                                (N.D. Okla.)
    individually and as Co-Trustee of the
    S.L.C.A. Family Trust,

                Defendant-Appellant,

    and

    REGINA M. CARLSON, as
    Co-Trustee of the S.L.C.A. Family
    Trust; W. T. MOORE; MARTHA F.
    MOORE, individually and as Trustee
    of the W.T. Moore Revocable Trust
    dated June 12, 2002; W.T. SMITH;
    JANETH S. SMITH, ALBERT
    MENDEZ, Individually and as Trustee
    of the Mendez Family Trust; KATHY
    ANGLIN, in her official capacity as
    Creek County Treasurer,

                Defendants.


                              ORDER AND JUDGMENT *

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
                                                                       (continued...)
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


      After the district court reduced to judgment Lindsey K. Springer’s tax

assessment and ordered foreclosure on certain real property, see United States v.

Springer, 427 F. App’x 650, 651 (10th Cir. 2011), persons who held a mortgage

on the property and who had participated in the litigation (the “Cross-Claimants”)

moved for an award of attorney’s fees and expenses against Mr. Springer. The

magistrate judge recommended granting the motion in part and awarding to the

Cross-Claimants $10,576.56 of the $35,411.16 requested in fees and expenses.

Mr. Springer objected. After a de novo review, the district court adopted the

recommendation. Mr. Springer appeals. 1

      Of the opening brief’s five arguments, the first three are directed to the

district court’s merits determination regarding the mortgage held by the

Cross-Claimants. This court has already affirmed the merits decision. See id. at

*
 (...continued)
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
       During the pendency of this appeal, Mr. Springer’s attorney, Jerold W.
Barringer, was indefinitely suspended from practicing before this court. See In re
Barringer, No. 11-816 (10th Cir. Sept. 2, 2011) (per curiam), reh’g en banc
denied (10th Cir. Sept. 28, 2011). Mr. Springer is subject to pro se filing
restrictions, see Springer v. IRS ex rel. United States, 231 F. App’x 793, 802-04
(10th Cir. 2007); Springer v. IRS ex rel. United States, Nos. 05-6387, 06-5123,
06-6268 (10th Cir. May 23, 2007) (unpublished order), but the panel has
considered this appeal on the merits because it was fully briefed before
Mr. Barringer’s suspension.

                                        -2-
653 (affirming for substantially the reasons stated by the district court); Aplt.

App. at 31-34 (district court order regarding Cross-Claimants’ claims). We

decline Mr. Springer’s invitation to revisit these issues in the guise of this fee

appeal. 2 The fourth argument, however, is dispositive of this appeal. In that

argument, Mr. Springer contends that the Cross-Claimants waited too long under

Fed. R. Civ. P. 54(d)(2) to seek a fee award. “We review for abuse of discretion

a district court’s decision whether or not to consider . . . an untimely [Rule

54(d)(2)] motion.” Quigley v. Rosenthal, 427 F.3d 1232, 1237 (10th Cir. 2005).

      The Cross-Claimants’ September 8, 2010, motion was filed nearly six

months after the district court’s March 16, 2010, judgment, even though Rule

54(d)(2)(B)(i) provides that a motion for attorney’s fees must generally be filed

within 14 days of the entry of judgment. Mr. Springer challenged the motion’s

timeliness in his response, but the Cross-Claimants’ reply focused on the

United States’s response and ignored his arguments, including his timeliness

argument. 3 The magistrate judge’s report and recommendation did not address

the issue, nor did the district court’s order. And on appeal, the Cross-Claimants

2
       In the jurisdictional section of his brief, Mr. Springer also conclusorily
asserts that he “believes the suit was without proper authorization from the
Secretary of the Treasury,” but states that the issue is before this court in other
appeals. Aplt. Opening Br. at 1. In the merits appeal we rejected his
jurisdictional assertions as “patently frivolous.” Springer, 427 F. App’x at 653.
3
       The magistrate judge held a hearing on the motion, but it does not appear
that the proceedings were transcribed. The minute order does not indicate
whether timeliness was argued.

                                          -3-
have chosen not to file a brief. Nothing indicates that Rule 54(d)(2) is

inapplicable, or that the court extended the time for Cross-Claimants to file their

fee motion. The only evident facts are that the motion followed the judgment by

nearly six months, with neither the record nor the appellate briefing giving even a

hint of any reason for the delay.

       Under Fed. R. Civ. P. 6(b)(1)(B), after the 14-day period a district court

may extend Rule 54(d)(2)(B)’s time limit “on motion” for “excusable neglect.”

See Quigley, 427 F.3d at 1237. But the record does not reflect any motion by the

Cross-Claimants seeking an extension. Nor does the record present any reason

for the delay, much less any “facts that we would recognize as constituting

excusable neglect.” Quigley, 427 F.3d at 1238. Under these circumstances, we

must conclude that the district court abused its discretion in considering and

granting, even in part, the Cross-Claimants’ untimely fee motion. Cf. id.

(concluding that the district court did not abuse its discretion in concluding the

proffered reasons did not amount to excusable neglect); see also Bender v. Freed,

436 F.3d 747, 750 (7th Cir. 2006) (“The Plan missed the deadline under Rule

54(d)(2) and offers no reason for having done so. The fact that the parties were

‘well aware’ that the Plan intended to file a fees motion at some indeterminate

date in the future does not excuse noncompliance with the applicable procedural

rules.”).




                                         -4-
      The judgment of the district court is REVERSED, and this case is

REMANDED with directions to deny as untimely the Cross-Claimants’ motion

for an award of attorneys’ fees and costs.


                                                 Entered for the Court


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                         -5-
