Zimmerman v. City of Austin

United States Court of Appeals
for the Fifth Circuit

No. 19-50857

Donald Zimmerman,

Plaintiff—Appellant,

versus

City of Austin, Texas,

Defendant—Appellee .

Appeal from the United States District Court
for the Western District of Texas
USDC 1:15-CV-628

Before D
ENNIS, SOUTHWICK, and HO, Circuit Judges.
L
ESLIE H. SOUTHWICK, Circuit Judge:
The plaintiff challenges the denial of his request for attorneys’ fees
incurred at trial and during the first appeal to this court. The defendant
argues that the district court had no subject-matter jurisdiction over the fee
request and, in the alternative, that the district court properly denied the
request. We AFFIRM.

United States Court of Appeals
Fifth Circuit
FILED
August 13, 2020

Lyle W. Cayce
Clerk
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FACTUAL AND PROCEDURAL BACKGROUND
At a July 2016 bench trial, former Austin city councilman Donald
Zimmerman prevailed on some but not all of his First Amendment claims
against the City of Austin, which he had brought under 42 U.S.C. § 1983.
Zimmerman’s Rule 59(e) motion to amend the judgment was denied in
October 2016. He did not file a motion for attorneys’ fees within the 14-day
time period provided by Federal Rule of Civil Procedure 54(d). The parties
filed cross-appeals. We affirmed the judgment of the district court but
expressly did not decide the question of whether Zimmerman had waived his
fee request. See Zimmerman v. City of Austin, 881 F.3d 378, 395–96 (5th Cir.
2018). We later denied Zimmerman’s petition for rehearing en banc.
After our denial of rehearing, the district court granted the parties’
“joint motion to defer disposition of attorney fee issues.” The court entered
an order that consideration of attorneys’ fees, including issues of jurisdiction
on remand and waiver, could be raised within 14 days of (1) a final disposition
of the United States Supreme Court on petitions for certiorari, or (2) passage
of the deadline for filing petitions for certiorari if they were not filed.
Zimmerman filed a petition for certiorari, which was denied. Zimmerman v.
City of Austin, 139 S. Ct. 639 (2018). Within 14 days of that denial,
Zimmerman filed in the district court a motion requesting attorneys’ fees
incurred both at trial and on appeal pursuant to 42 U.S.C. § 1988(b).
The district court referred the fee request to a magistrate judge, who
concluded that Zimmerman had waived his right to request any fees by not
filing a request within Rule 54(d)’s 14-day time period. The district court
adopted the magistrate judge’s report and recommendation and denied
Zimmerman’s request. Zimmerman appealed.
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DISCUSSION
The City argues that the district court did not have subject-matter
jurisdiction to decide Zimmerman’s motion for fees. We first address
jurisdiction. Finding it exists, we then discuss attorneys’ fees.

I. Subject-matter jurisdiction
Though the parties did not raise this issue before the district court,
questions of subject-matter jurisdiction cannot be forfeited or waived. NFL
Players Ass’n v. NFL, 874 F.3d 222, 225 (5th Cir. 2017). Thus, “[f]ederal
courts may examine the basis of jurisdiction sua sponte, even on appeal.”
Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999). Questions
of subject-matter jurisdiction are reviewed de novo. See NFL, 874 F.3d at 225.
We examine here two different kinds of “ancillary” subject-matter
jurisdiction, the first of which is statute based and the second of which is
common–law based.
We have stated that 28 U.S.C. § 1367(a) “supplemental” jurisdiction
is a codification of one type of “ancillary” jurisdiction that permits
“disposition by a single court of claims that are, in varying respects and
degrees, factually interdependent.” Energy Mgmt. Servs., LLC v. City of
Alexandria, 739 F.3d 255, 257 n.1 (5th Cir. 2014) (first quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 379–80 (1994); then citing Peacock
v. Thomas, 516 U.S. 349, 354 n.5 (1996)). According to the City, once
judgment was entered on the initial merits claim, “the basis for the exercise
of supplemental jurisdiction over a fee claim under § 1367(a) disappeared.”
Indeed, Section 1367 supplemental jurisdiction (i.e., codified factually-
interdependent-claim ancillary jurisdiction) “disappear[s] . . . after [an]
original federal dispute is dismissed.” National City Golf Fin. v. Scott, 899
F.3d 412, 416 (5th Cir. 2018). The Scott court relied on the following
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Supreme Court analysis of codified ancillary-supplemental jurisdiction:
“once judgment was entered in the original ... suit, the [district court’s]
ability to resolve simultaneously intertwined issues vanished.” Id. (quoting
Peacock, 516 U.S. at 355). Further, “‘neither the convenience of litigants nor
considerations of judicial economy’ can justify the extension of [codified-
]ancillary jurisdiction over [a party’s] claims in [a] subsequent proceeding.”
Peacock, 516 U.S. at 355 (quoting Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 377 (1978)). The City argues that this means the district court did
not have supplemental jurisdiction to decide Zimmerman’s fee request.
Zimmerman recognizes Section 1367 supplemental subject-matter
jurisdiction, but he does not argue it supported his fee request.
Zimmerman’s fee request was not “factually interdependent,” Energy
Mgmt. Servs., 739 F.3d at 257 n.1, or “factually intertwined,” Peacock, 516
U.S. at 355, with his underlying merits claims. “[A] request for attorney’s
fees under § 1988 raises legal issues collateral to the main cause of action”
and “supplemental to the original proceeding.” White v. N.H. Dep’t of Emp’t
Sec., 455 U.S. 445, 451 & n.13 (1982) (quoting Sprague v. Ticonic Nat’l Bank,
307 U.S. 161, 170 (1939)). The question of which party is entitled to fees
under Section 1988 “require[s] an inquiry separate from the decision on the
merits” and “is uniquely separable from the cause of action to be proved at
trial.” Id. at 451–52. Consequently, Section 1367 supplemental jurisdiction
would not extend to a Section 1988 fee request. Regardless, any such
jurisdiction would have “disappear[ed]” with entry of judgment. Scott, 899
F.3d at 416 (citing Peacock, 516 U.S. at 355).
A second type of ancillary jurisdiction is one that “enable[s] a court to
function successfully,” i.e., “to manage its proceedings, vindicate its
authority, and effectuate its decrees.” Energy Mgmt. Servs., 739 F.3d at 257
n.1 (quoting Kokkonen, 511 U.S. at 379–80). It is uncodified, but it “remains
a viable doctrine of ancillary jurisdiction and is often referred to as ‘ancillary
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enforcement jurisdiction.’” Id. (quoting Peacock, 516 U.S. at 356). “This
form of jurisdiction developed in case law as ‘ancillary’ or ‘ancillary
enforcement’ jurisdiction. It seems clear that § 1367 does not apply to this
form of jurisdiction.” 13 C
HARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 3523.2 (3d ed. 1998).
Proceedings concerning attorneys’ fees for a case that invoked federal
subject-matter jurisdiction are supported by this uncodified ancillary
jurisdiction. Id. “The court’s enforcement authority extends to ‘collateral
issues,’ things like fees, costs, contempt, and sanctions.” Scott, 899 F.3d at
416.
The City argues there was no ancillary enforcement jurisdiction over
Zimmerman’s fee request because neither Zimmerman nor the district court
“linked” the fee request to the merits claim. The City analogizes a case
where the parties had entered a settlement agreement and filed a stipulation
of dismissal with prejudice under Federal Rule of Civil Procedure 41(a).
Kokkonen, 511 U.S. at 376–77. Though neither the stipulation nor the
dismissal order incorporated the settlement, the district court entered a later
order to enforce the settlement agreement, id. at 377, apparently relying on
the “second head” of ancillary jurisdiction, id. at 380. The Supreme Court
reversed because the enforcement was “quite remote from what courts
require in order to perform their functions,” id., and “more than just a
continuation or renewal of the dismissed suit, and hence require[d] its own
basis for jurisdiction.” Id. at 378.
According to the City, the facts here are like Kokkonen because the
stipulation and the dismissal order there were not “linked” to the settlement
agreement, and thus enforcement required its own independent basis of
jurisdiction. Consequently, there was no ancillary enforcement jurisdiction
in Kokkonen. The City argues there is none here either.
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Zimmerman replies that it was this “second type of ancillary
jurisdiction” that supported his fee claim. He contends that Kokkonen is
inapposite because it was based on distinguishable facts. The Kokkonen
respondent had sought to enforce a settlement agreement, which was a
“claim for breach of contract, part of the consideration for which was
dismissal of an earlier federal suit.” Kokkonen, 511 U.S. at 381. Zimmerman
also quotes a Ninth Circuit opinion that “a district court’s ancillary
jurisdiction over an attorney’s fee dispute is inherent and broader than its
ancillary jurisdiction to enforce a settlement agreement.” K.C. ex rel. Erica
C. v. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014).
Ancillary enforcement jurisdiction extends to fees, but it does not
extend to enforcement of a settlement that prompted a Rule 41(a) dismissal
unless the parties’ Rule 41 stipulation “expressly manifest[s] their intent that
dismissal be contingent upon a future act (such as the district court’s issuing
an order retaining jurisdiction).” Scott, 899 F.3d at 416–17 (quotation marks
omitted). This means that Kokkonen does not control here. The district
court’s ancillary enforcement jurisdiction supports the fee claim regardless
of the maintenance of the original action. Even if a court loses jurisdiction
over the litigation, it maintains its “inherent supervisory powers.” Qureshi
v. United States, 600 F.3d 523, 525 (5th Cir. 2010). Thus, “‘a federal court
may consider collateral issues after an action is no longer pending,’ including
‘the imposition of costs [and] attorney’s fees.’” Bechuck v. Home Depot
U.S.A., Inc., 814 F.3d 287, 291–92 (5th Cir. 2016) (quoting Cooter & Gell v.
Hartmax Corp., 496 U.S. 384, 396 (1990)). The failure to raise the issue of
attorneys’ fees in the district court after trial — thereby keeping it from being
an issue before us on the first appeal — did not preclude the district court
from having jurisdiction to rule on such a motion. See United Indus., Inc. v.
Simon-Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996). Ultimately, the district
court’s ancillary enforcement jurisdiction covered the “collateral issue” of
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Zimmerman’s attorney fee request. See Qureshi, 600 F.3d at 525 (quoting
Cooter & Gell, 496 U.S. at 395).

II. Attorneys’ fees
In considering whether the district court erred in denying
Zimmerman’s fee request, we first review the request for fees incurred at
trial, then the request for fees incurred during the first appeal to this court.
A. Fees incurred at trial
Federal Rule of Civil Procedure 54(d)(2) addresses claims for
attorney’s fees and costs:
(A) Claim to Be by Motion. A claim for attorney’s fees and
related nontaxable expenses must be made by motion unless
the substantive law requires those fees to be proved at trial as
an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a
court order provides otherwise, the motion must:
(i) be filed no later than 14 days after the entry of
judgment;
(ii) specify the judgment and the statute, rule, or other
grounds entitling the movant to the award;
(iii) state the amount sought or provide a fair estimate
of it; and
(iv) disclose, if the court so orders, the terms of any
agreement about fees for the services for which the
claim is made.
F
ED. R. CIV. P. 54(d)(2)(A)–(B). A new 14-day deadline “for filing will
automatically begin if a new judgment is entered following a reversal or
remand by the appellate court or the granting of a motion under Rule 59.”
F
ED. R. CIV. P. 54 advisory committee’s note to 1993 amendment.
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“Judgment” is defined as “a decree and any order from which an appeal
lies.” F
ED. R. CIV. P. 54(a).
Zimmerman recognizes that hi s Rule 59(e) motion was denied on
October 26, 2016, making a motion for attorneys’ fees due by November 9,
2016. He says that there is flexibility on timing, though, because the Western
District of Texas Local Rules give district courts discretion to find his fee
request to have been timely, and that the district court did not sufficiently
explain why denying his request was necessary or appropriate. The
referenced local rule provides:
(1) . . . [A] claim for fees shall be made by motion not later than
14 days after entry of judgment pursuant to Federal Rule of
Civil Procedure 54(d)(2) and pursuant to the following
provisions. . . . The motion shall include a supporting
document organized chronologically by activity or project,
listing attorney name, date, and hours expended on the
particular activity or project, as well as an affidavit certifying
(1) that the hours expended were actually expended on the
topics stated, and (2) that the hours expended and rate claimed
were reasonable. . . .
. . .
(3) A motion for award of attorney’s fees filed beyond the 14-
day period may be deemed untimely and a waiver of
entitlement to fees.
W.D. T
EX. Civ. R. 7(j). According to Zimmerman, because this rule
states that a late-filed motion “may be deemed untimely,” the district court
had discretion to grant his motion but erred in failing to consider
(1) Zimmerman’s misled “effort to preserve judicial and party resources”
(i.e., waiting to file his request until after the appeal was resolved), and (2) the
lack of prejudice to the City if the motion were granted.
Zimmerman concedes that he did not file a motion for attorneys’ fees
within the 14-day time period provided by Rule 54(d), and that this was a
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mistake with regard to the fees incurred at trial. “This failure to file within
the allotted period serves as a waiver of [his] claim for attorneys’ fees.”
United Indus., 91 F.3d at 766. Even if the district court had discretion to
excuse the delay in filing, and we do not hold it did, no error occurred by
failing to exercise the discretion. Zimmerman waived his right to request fees
incurred at trial.
B. Fees incurred on appeal
“The routine allocation of appellate costs” under Federal Rule of
Appellate Procedure 39 is distinct from the recovery of attorneys’ fees.
Sciambra v. Graham News, 892 F.2d 411, 414 (5th Cir. 1990). Our judgment
from the first appeal ordering each party to bear its own costs has no
relevance to the issue of attorneys’ fees incurred during that appeal.
The City argues that because Rule 54(d)(2) requires a movant to
“state the amount sought or provide a fair estimate of it,” Zimmerman could
have met the 14-day deadline by filing a prospective request for appellate fees
in the district court, accompanied by some estimate of what his fees would be
on appeal. As Zimmerman discusses, though, the applicable Western
District of Texas Local Rule precludes this option; it requires fee requests to
“include a supporting document organized chronologically by activity or
project, listing attorney name, date, and hours expended on the particular
activity or project, as well as an affidavit certifying (1) that the hours
expended were actually expended on the topics stated, and (2) that the hours
expended and rate claimed were reasonable.” W.D. T
EX. Civ. R. 7(j).
Zimmerman could not have complied with this requirement by filing a
prospective request with mere estimates of future fees.
Caselaw in this court is the relevant authority for analyzing how
parties may seek attorneys’ fees incurred on appeal. We have held that this
issue may properly be raised before us, even if only “raised on appeal and not
considered below.” Marston v. Red River Levee & Drainage Dist., 632 F.2d
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466, 467 (5th Cir. 1980). The rules of this court anticipate that such requests
will be made and outline the documentation required to support such a
request. 5
TH CIR. R. 47.8. Although we have the authority to award such
fees, “[o]ur preferred procedure is to remand for the determination of the
amount of such an award.” Marston, 632 F.2d at 468. We have employed
this preferred procedure quite recently. See Hill v. Washburne, 953 F.3d 296,
310–11 (5th Cir. 2020) (citing Instone Travel Tech Marine & Offshore v. Int’l
Shipping Partners, Inc., 334 F.3d 423, 433 (5th Cir. 2003)). We have also
recognized that “[t]he issue of appellate attorney’s fees is a matter for the
district court following the resolution of an appeal.” Instone, 334 F.3d at 433.
In conclusion, the district court did not err when it denied
Zimmerman’s request for fees incurred on appeal. Zimmerman made no
request within the 14-day time period after the district court entered its initial
judgment. There also was no new judgment entered following a reversal or
remand from this court because this court affirmed the district court’s initial
judgment in full. In the initial appeal, Zimmerman could have filed a petition
or motion in this court requesting such fees, accompanied by supporting
documentation pursuant to Local Rule 47.8, but he did not.
We indicate no opinion as to merit or timeliness should Zimmerman
later file in this court a request for fees incurred during his first or the present
appeal.
AFFIRMED.
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