                             UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
