Crowley v. L.L. Bean, Inc.

United States Court of Appeals
For the First Circuit

No. 03-1678

EILEEN CROWLEY,

Plaintiff, Appellant,

v.

L.L. BEAN, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.

Gerald F. Petruccelli, with whom Petruccelli, Martin & Haddow,
LLP, were on brief for appellant.
Peter J. Brann, with whom Brann & Isaacson, were on brief for
appellee.

March 17, 2004
 STAHL, Senior Circuit Judge. Following a jury trial,

plaintiff-appellant Eileen Crowley prevailed on civil rights claims

against defendant-appellee L.L. Bean, Inc. Several weeks after

this court affirmed the judgment, Crowley applied to the district

court for attorneys' fees. The district court denied the

application, finding it to be untimely, and held that Crowley had

complied neither with its own order nor with Maine Local Rule 54.2.

We affirm the district court's denial of attorneys' fees.

I. BACKGROUND

In June, 2000, Crowley asserted several civil rights

claims against her employer, L.L. Bean. On June 14, 2001, after a

jury trial, the district court awarded judgment to Crowley.

On June 26, 2001, L.L. Bean filed a renewed motion for

judgment as a matter of law or, if denied, a motion for a new

trial. On October 24, 2001, before any ruling on L.L. Bean's

motion had issued, Crowley filed a document titled "Request for

Clarification on Filing of Attorneys' Fees Application." In that

submission, Crowley asked for "clarification on when the Court

would like plaintiff to file her application for attorneys' fees as

the prevailing party in this matter." That day, the district court

entered an order stating: "It is hereby ordered the attorneys' fees

application be filed with this Court within 30 days of the

disposition of any appeal."

-2-
 On November 8, 2001, the district court denied L.L.

Bean's motion for a new trial and amended its judgment in favor of

Crowley. L.L. Bean appealed, and on September 19, 2002, this court

affirmed the judgment below. Crowley v. L.L. Bean, Inc., 303 F.3d

387 (1st Cir. 2002). The mandate was issued on October 21, 2002;

it was received by the district court on November 4, 2002, and was

filed in the electronic docket on November 6.

On January 17, 2003, Crowley filed her petition for

attorneys' fees in district court pursuant to Local Rule 54.2.

That rule provides the time frame for filing such petitions:

An application for attorneys' fees in those
cases in which fees have been contracted for
or in any case in which no notice of appeal
has been filed shall be filed within 30 days
of the expiration of the time for filing a
timely appeal.
An application for fees in all other cases
shall be filed within 30 days of the filing of
the appellate mandate providing for final
disposition of any appeal.
A claim for fees filed before the final
disposition of any appeal shall have no effect
and a new application must be filed within the
prescribed time as described herein.
Me. Loc. R. 54.2 (2001).1

On January 31, L.L. Bean filed a motion to strike

Crowley's petition as untimely, which the district court granted.

Crowley then filed a motion for reconsideration, which was denied.

1
Rule 54.2 has since been amended.

-3-
Thereafter, she appealed from the order granting the motion to

strike.2

II. ARGUMENT

Here, Crowley advances two related arguments: (1) Local

Rule 54.2 should be construed to permit the filing of her

application for attorneys' fees, and (2) even if her application

was untimely under the rule, the district court nonetheless should

have considered it.

Although we typically review the interpretation of a

federal procedural rule de novo, Blake v. Pellegrino, 329 F.3d 43,

46 (1st Cir. 2003), we accord “a special degree of deference --

above and beyond the traditional standards of decisionmaking and

appellate oversight -- . . . to a court’s interpretation of its own

local rules.” In re Jarvis, 53 F.3d 416, 422 (1st Cir. 1995).

Moreover, we have held that the application of a district court’s

local rule is reviewed for abuse of discretion. NEPSK, Inc. v.

Houlton, 283 F.3d 1, 5 (1st Cir. 2002) (citing CMM Cable Rep, Inc.

v. Ocean Coast Props, Inc., 97 F.3d 1504, 1528 (1st Cir. 1996));

see also Air Line Pilots Ass’n v. Precision Valley Aviation, 26

F.3d 220, 224 (1st Cir. 1994) (applying “broad latitude in

2
Crowley does not appeal from the district court's denial of
her motion for reconsideration.

-4-
administering local rules”).3 While a district court may forgive

a party's violation of a local rule, United States v. Diaz-

Villafane, 874 F.2d 43, 47 (1st Cir. 1989), we review deferentially

its refusal to do so. NEPSK, Inc., 283 F.3d at 9.

A. Whether Crowley's petition for fees was untimely

Crowley contends that the district court misinterpreted

Local Rule 54.2, and that her petition for attorneys' fees in fact

was timely filed. We begin with the text of the rule.

As the parties now seem to agree, the first paragraph of

Local Rule 54.2 does not apply to Crowley's fee application, as

this is not a case in which fees were contracted for or in which no

notice of appeal was filed.4 Rather, the timeliness is governed by

the second paragraph, which states, "An application for fees in all

other cases shall be filed within 30 days of the filing of the

appellate mandate providing for final disposition of any appeal."

L.R. 54.2.

3
To the extent that we consider the district court's order
purporting to clarify the time for applying for attorneys' fees, we
also apply a deferential standard of review. “[D]eference is
particularly appropriate where, as here, the correctness of the
court’s decision depends in large part on the proper
characterization of its own statements.” Kinton, 284 F.3d at 30;
see also Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987)
(“uncertainty as to the meaning and intendment of a district court
order can sometimes best be dispelled by deference to the views of
the writing judge”).
4
In the district court, Crowley contended that the first
paragraph of the local rule applied to her fee application. She
does not advance that argument here.

-5-
 The crux of the dispute lies in the words "final

disposition of any appeal." L.L. Bean contends, consistent with

the district court's opinion, that this phrase refers to an appeal

to this court. Crowley filed her petition for fees ten weeks after

this court issued its appellate mandate and eight weeks after the

mandate had been filed in district court. Under this

interpretation of Rule 54.2, her petition was indisputably

untimely.

Crowley, however, reads the phrase "any appeal" more

broadly to include certiorari petitions to the Supreme Court.

Specifically, she contends that a prevailing plaintiff is required

to file her petition for attorneys' fees within thirty days after

the "expiration date" of the opposing party's right to appeal. The

thirty-day period should not begin, she says, until there has been

(1) express waiver of further review on certiorari; (2) denial of

certiorari; (3) passage of the deadline to seek certiorari; or (4)

the Supreme Court's decision, whichever is latest. Here, L.L. Bean

had ninety days from the filing of the Court of Appeals mandate to

file for certiorari with the Supreme Court. After that time passed

with no certiorari filing, Crowley argues, she had an additional

thirty days in which to submit her petition.

A plain reading of L.R. 54.2, however, indicates that the

district court reasonably interpreted "any appeal" to refer solely

to an appeal to this court. First, the rule makes no explicit

-6-
reference to certiorari, only to "appeals."5 The Supreme Court no

longer adjudicates "appeals" in cases such as this. See Pub. L.

100-352, § 1, 102 Stat. 662 (June 22, 1988) (repealing 28 U.S.C. §

1252, thereby eliminating nearly all of the Supreme Court's

mandatory appellate jurisdiction).

Second, the Rule's reference to "appellate mandate

providing for final disposition of any appeal" reasonably refers to

action by this court, not the Supreme Court. The Supreme Court

generally does not issue appellate mandates. If it denies a

petition for certiorari, it does not issue a mandate; rather, the

clerk prepares, signs, and enters an order to that effect. See

Sup. Ct. R. 45(3). If the Court instead grants plenary review, "a

formal mandate does not issue unless specifically directed;

instead, the Clerk of [the Supreme] Court will send the clerk of

the lower court a copy of the opinion or order of [the Supreme]

Court and a certified copy of the judgment." Sup. Ct. R. 45(3).6

5
By way of contrast, a local rule in this circuit provides:
"For purposes of the 30-day limit, a judgment must not be
considered final until the time for filing an appeal or a petition
for writ of certiorari has expired, or judgment is entered by the
court of last resort." 1st Cir. L. R. 39(b).
6
Crowley notes correctly that in the courts of appeals,
"formal" mandates similarly do not issue unless directed by the
court. F.R. App. P. 41(a). Rule 41(a) provides, "Unless the court
directs that a formal mandate issue, the mandate consists of a
certified copy of the judgment, a copy of the court's opinion, if
any, and any direction about costs." (emphasis added). This
language indicates that our post-appeal procedure invariably
involves a "mandate," whether it is formal or not. Hence it is
distinguishable from the text of Sup. Ct. R. 45(3), which indicates

-7-
Accordingly, the local rule's reference to "filing of the appellate

mandate" can reasonably be construed as pertaining only to action

of this court.

It is true that in other contexts, the term "final

disposition" has been interpreted to refer to action taken by the

Supreme Court or to additional appeals. See, e.g., Clay v. United

States, 123 S. Ct. 1072, 1075 (2003) (holding that for the purpose

of starting the clock on § 2255's one-year limitation period, a

judgment of conviction "becomes final" when the time expires for

filing a petition for certiorari contesting the appellate court's

affirmation of the conviction); Adams v. Sec. and Exchange Comm'n,

287 F.3d 183, 187 (D.C. Cir. 2002)(holding that thirty-day period

for filing for fees pursuant to Equal Access to Justice Act does

not run until the period in which an appeal can be brought has

expired). These decisions are specific to legal contexts

unrelated to those in the case at bar, however. See, e.g., Clay,

123 S. Ct. at 1075 ("the relevant context is postconviction relief,

a context in which finality has a long-recognized, clear meaning").

There is no uniformity of interpretation as to the term "final

disposition" and similar phrases; other cases use these terms to

refer to judgments of the district court, a reading that plainly is

inapplicable here. See, e.g., Roell v. Withrow, 123 S. Ct. 1696,

that in the Supreme Court, a "mandate" is an unusual occurrence
requiring that special action be taken.

-8-
1698 (2003); Cunningham v. Hamilton County, Ohio, 527 U.S. 198,

202-03 (1999); Swint v. Chambers County Comm'n, 514 U.S. 35, 51

(1995). Reading the Rule 54.2 as a whole, we conclude that the

district court's interpretation was not erroneous, and that

Crowley's application for attorneys' fees was untimely.

Crowley points to the detailed information contained in

her fee petition and maintains that it is improper for the opposing

party to have access to it before the litigation is complete. The

likelihood of the Supreme Court granting certiorari on any given

case is exceedingly slim, however. The risk of confidential

information being shared with an opposing party who might somehow

use it to its advantage in litigation before the Supreme Court is

minimal, and does not change the result in this case. Further, if

such a threat arose in a particular case, it could be addressed by

seeking an extension on that ground or requesting to submit

sensitive information under seal.

B. Whether the district court correctly denied Crowley's
untimely submission

Crowley contends that even if her fee petition was

untimely, the district court should have excused her tardiness and

accepted the petition. In the district court, she argued that her

interpretation of the local rule, even if incorrect, was

permissible: "To the extent that this Court disagrees [with

Crowley's interpretation of Rule 54.2], plaintiff asks that her

-9-
petition for fees nonetheless be considered, her interpretation of

the applicable rule being excusable and the result being just."

Crowley advanced no other explanation for her tardiness. Nor did

she submit an affidavit in support of her excuse.

We see no excusable neglect in this situation.

Misinterpretation or misunderstanding of the law does not excuse a

late filing in the absence of extraordinary circumstances. See

Graphic Communications Int'l Union, Local 12-N v. Quebecor Printing

Providence, Inc., 270 F.3d 1, 6 (1st Cir. 2001) (failure to file a

timely notice of appeal was not excused). No extraordinary

circumstances were asserted here.

On appeal, Crowley references the purported ambiguity of

Local Rule 54.2 as an explanation for her tardiness. It appears,

however, that she was on notice that the rule was susceptible to

the interpretation she now disputes. Her Request for Clarification

on Filing of Attorneys' Fee Application, submitted to the district

court days after this court's mandate issued, stated:

Historically, the clerk's office has
interpreted Local Rule 54.2 to require that
attorneys' fees applications to [sic] be made
only after disposition of any appeal. . . .
plaintiff requests that the Court's historical
practice of requiring that fee petitions not
be filed until after the disposition of all
appeals be set forth in an order in this case
. . . In the alternative, plaintiff requests
an extension of time to file a fee petition
until the disposition of all appeals in this
case.

-10-
(emphasis added). The district court responded: "It is hereby

ordered the attorneys' fees application be filed with this Court

within 30 days of the disposition of any appeal." Crowley did not

file a motion for enlargement of time, nor did she seek additional

clarification of the rule.

Crowley's filing evidenced an awareness that the local

rule might be applied so as to require the application to be filed

within thirty days of the disposition of this court's appeal.

Although the district court's response was perhaps not as

illuminating as it could have been, it provided additional notice

to Crowley that she would be wise to file her application within

thirty days of this court's mandate. Accordingly, Crowley may not

rely on her ignorance or misunderstanding of the rule as an excuse

for her late filing.

As did the district court, we recognize the harshness of

the result in this case. Forfeiting as much as $180,000 in fees is

a steep price to pay for missing a filing deadline. There is no

evidence of prejudice to L.L. Bean as a result of the delay. It

certainly would have been permissible, and perhaps indeed

appropriate, for the district court to have considered the fee

application notwithstanding its tardiness.

That decision was committed to the district court's

discretion, however. Citing the essential nature of "uniform

enforcement of the rules," the district court permissibly (if

-11-
somewhat rigidly) exercised its case management duties. See Top

Entertainment Inc. v. Ortega, 285 F.3d 115, 117 (1st Cir. 2002),

and cases cited. "Rules of procedure are vitally important in

judges' efforts to manage burgeoning caseloads with some semblance

of efficiency. Within wide limits, it is for courts, not

litigants, to decide what rules are desirable and how rigorously to

enforce them." Air Line Pilots Ass’n, 26 F.3d at 224. In light of

Crowley's apparent awareness of the strong possibility that the

court would interpret the local rule as it did, the court did not

abuse its discretion to enforce the deadline and impose

consequences for her tardiness.7 Under the specific facts of this

case, therefore, we will not disturb the court's decision to deny

consideration of the fee application.

For the reasons set forth supra, we AFFIRM the district

court's denial of attorneys' fees.
Dissent follows.

7
Our decision in United States v. Fraya, 145 F.3d 1 (1st Cir.
1998) does not affect the result here. In Fraya, we held that the
district court abused its discretion in rejecting appellant's
opposition to summary judgment as untimely on the ground that there
was ambiguity in the interplay between two Puerto Rico Local Rules
as to the applicable deadline. Id. at 5. Fraya is substantively
distinguishable from the case at bar, however, in that it does not
pertain to the concepts of "appeal" and "final disposition." More
importantly, in Fraya we based our determination of abuse of
discretion squarely on the ambiguity in the applicable rules. Id.
Here we hold that Local Rule 54.2 was not ambiguous, and that in
any event, Crowley could not have been blindsided by the district
court's interpretation of the rule in light of her motion to
clarify it.

-12-
 TORRUELLA, Circuit Judge (Dissenting). Both the majority

and the district court "recognize the harshness of the result in

this case." Ante at 12. That need not be. I agree with the

majority that "[i]t certainly would have been permissible, and

perhaps indeed appropriate, for the district court to have

considered the fee application notwithstanding its tardiness." Id.

While the decision to accept what I will assume was a late

application is committed to the district court's discretion, I

cannot agree with the majority that the district court acted within

its discretion in requiring the forfeiture of nearly $180,000 in

fees in the name of the "uniform enforcement of the rules."

The majority recognizes that L.L. Bean was not prejudiced

by the late filing. Instead, it rests its holding on "Crowley's

apparent awareness of the strong possibility that the court would

interpret the local rule as it did." Id. Support for that finding

comes from the text of Crowley's Request for Clarification on

Filing of Attorneys' Fee Application. Crowley asked that "the

Court's historical practice of requiring that fee petitions not be

filed until after the disposition of all appeals be set forth in an

order in this case." Should the district court determine that this

would not be its practice, Crowley asked "[i]n the alternative

. . . [for] an extension of time to file a fee petition until the

disposition of all appeals in this case."

-13-
 The district court did not address Crowley's alternative

request for an extension of time, but rather responded that "It is

hereby ordered the attorneys' fees application be filed with this

Court within 30 days of the disposition of any appeal." Replacing

"all appeals" in the request with "any appeal" in the answer

eliminated, albeit subtly, the possibility that the local rule's

time clock would not start ticking until the second or third or

whichever was last in a string of appeals concluded, assuming

appeals can be considered discretely.

Nothing in the court's order, however, clarified when an

appeal reaches its final disposition, an expression the majority

indicates can vary in meaning. See ante at 8-9. A party looking

to our local rules for guidance, for example, might find relevant

this language in Rule 39, Fee Applications: "For purposes of the

30-day limit, a judgment must not be considered final until the

time for filing an appeal or a petition for a writ of certiorari

has expired . . . ." 1st Cir. L. R. 39. In short, I do not find

sufficient evidence that Crowley "was on notice that the rule was

susceptible to the interpretation she now disputes." Ante at 11.

Because I conclude that Crowley was conscientious in mistakenly

adhering to the wrong deadline, I believe the district court not

only could have -- as the majority recognizes -- but should have

avoided this unbecoming forfeiture by allowing a late fees

petition.

I respectfully dissent.

-14-