Case: 19-50857     Document: 00515526351         Page: 1      Date Filed: 08/13/2020




         United States Court of Appeals
              for the Fifth Circuit
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                     August 13, 2020
                                 No. 19-50857                         Lyle W. Cayce
                                                                           Clerk

 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 DENNIS, SOUTHWICK, and HO, Circuit Judges.
 LESLIE 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.
Case: 19-50857      Document: 00515526351         Page: 2     Date Filed: 08/13/2020




                                   No. 19-50857

         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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                                      No. 19-50857

                                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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                                   No. 19-50857

 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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                                    No. 19-50857

 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 CHARLES 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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                                   No. 19-50857

        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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                                    No. 19-50857

 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.
 FED. 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.”
 FED. R. CIV. P. 54 advisory committee’s note to 1993 amendment.




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                                    No. 19-50857

 “Judgment” is defined as “a decree and any order from which an appeal
 lies.” FED. R. CIV. P. 54(a).
        Zimmerman recognizes that his 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. TEX. 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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                                   No. 19-50857

 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. TEX. 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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                                     No. 19-50857

  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. 5TH 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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