course the city of austin has raised the jurisdictional argument in this court so i'll address that st and then i'll move on to address separately the the trial fees and appellate fees timeliness questions so st us   and that that was also reiterated by this court in two thousand and seven in the route of decision which which made specific mention of an example of a few requests under section one thousand nine hundred and eight as one that is not limited by  jurisdictional time limit so it's also clear that from this authority that a re man from the court of appeals is not necessary as a prerequisite for the district court to consider the fee  request and in this cases the panel opinion in the merits panel establishes the issue of fees was not raised in the district court of the time of the appeal it was not at issue in the appeal and so no reply brief pay seven dollars also this court's decision in united industries versus simon hartley in one thousand nine hundred and six which was notably was issued after rule fifty four dollars reiterates that point and says you know no issue of fees was an issue in the in the appeal and therefore it was not necessary to mention the fee issue one dollar remained and because it's a collateral matter there's no jurisdictional the court the district court has jurisdiction to consider it so it's absolutely clear that title in this of the fear requests is not a jurisdictional question it's a rules based question austin devotes most of its brief today to the jurisdictional challenge but that shouldn't attain as long because as i've argued in the reply the the jurisdiction is clear under these authorities and the premise that austin's entire jurisdiction argument is is is erroneous because it conflates collateral matter jurisdiction at issue or with ancillary jurisdiction over nonfederal claims and so i'll be happy to address any questions about jurisdiction that the court has but because i believe it's clear extend and misread the text of rule fifty four dollars d two and rule fifty four dollars more broadly in this context but also would require the court to ignore the plain text requirements of the local rule of the western district of texas which austin selectively relies on so in st week of course we have to remember that this appeal arises from the western district of texas which has a local rule that austin has entirely ignored in its arguments zimmerman has pointed to the specific requirements for documentation and you know essentially the time records of time actually expanded which are required under the local rule  to the magistrate's surprise ruling on this denying appellate fees in our objections of the district court we've cited those aspects of the local rule and from that day to this day austin has still not even acknowledged that there was exist seven j one says the fee motions shall include a supporting document organized chronologically by activity or project listing the attorney name date and hours expended on a particular activity or project and then it goes on to require a positive affirmation under oath that quote the hours expended were actually expended and reasonable so if you read the entirety of the local rule and fees there there is no exception provided for an estimated three dollars requests and so in order to rule against zimmerman and hold that that rule requires an estimated prospective appellate fee requests before the appeal is even commenced you would have to discretion whether that's valid or not under fifty four rule fifty four d is not really before says the judge just an exercise discretion is not where we are well no your honor and i think we have to because we have to distinguish clearly between the timeliness of the trial fee request and the timeliness of the appellate the requests and the whole premise of the district courts the district court in austin in this case both begin with the premise that rule fifty four d that that fourteen day deadline applies to the appellate the requests and my point is that and i haven't got to the texts the textual aspects of rule fifty four there in my brief but but so far i've discussed the local rule but if you read the local rule any litigant any any attorney reads a local rule and read that requirement for for the time expended actually expended and it actually requires you with the time you file the motion to file your time sheets there's no way you can do that it doesn't it doesn't allow for say that in my opening brief in the summary the argument i noted that fact that there is there is no circuit role as you know contrary a lot of other circuits there is no circuit deadline on the pill if you request filed in the court of appeals and so zimmerman can still do d that and and the court can impose you know other than the reasonable diligence and standard that applied before the rules were acted the you haven't found such a motion in our court yet we have not that's right and there's now but you're ready to do so i could certainly do so and of prospective fee request that's actually not allowed under the local rules well we need to follow rules and it seems to me that the district court's rules both the f r c p and the local rule do put you in a bind but it's not an impossible bind in the sense  they determined the th circuit has actually a deadline for fees motions filed in the court of appeals and the party didn't follow that they went ahead and filed in the district court but because the district court and the court of appeals have concurren over this are the emotion can be filed and decided by either court and so so if if it's denied in the district court of the district court didn't have you know the ability to determine appellate fees there's no deadline and summary can still file in this court but again just to conclude that point your honor you're right it were read where it's there's no way to win under the way austin wants to read this rule because it would require zimmerman to file few requests that at a time at which you can't meet the requirements of the local rule at the time you file it and you can't read the local rule to require the filing of a motion that by definition cannot meet the with falling for fees in the district court and the district court fees are within fourteen days of judgment and you can meet that deadline and i think as your conversation with judge home was shown you really can't do  but the way to do that with our list of whether is somehow is is recognizing that if a court rules you really can't do that in just a court but you're not prohibited you file up here and we're going to send it back to the district court we don't like to get in fact  review of actual billings by the time you finish up here so what's then you get into whether you needed earlier to a file whether you can file now on the pillock or dust a different issue but isn't that a process that fully covers your interest or your honor it does there's no question that the court of appeals has the authority to entertain those fema ques and sews zimmerman could could have all want to earlier could still file one bin if we had taken that after the completion of the earlier appeal any man of the effort of germination the local rules in district court would prevent them from judge from considering that we would have ordered them the district court to consider that well that's right it well that's right and that's and i think you're as good as the point to say that's right recent you haven't didn't do that in the an issue appeal let's say that is the process we have to decide no bar from having done this earlier than just pick or before appealing when you got here though you didn't file that  so what's your argument that you can still do it well because there's an there is no there is no deadline in the rules the fist circuit unlike several other circuits has not adopted a deadline for those few requests even though there is a specific deadline for costs requests which are which are different of course and so and especially when you look at rule rule of appellate procedure forty seven dollars b the circuit could not impose a deadline retroactive on on us on a request in a way that would prejudice my client and so your point is that the rule is reasonable diligence right the rule is reasonable diligence and at the time mandate in the merits appeal in this case we filed a joint motion to defer the fee issue so if even if austin comes now at this point and says well you didn't it's too late to file in the court of appeals number one that's wrong because there is no deadline and under  the cases i've cited the court can impose one retroactively it can adopt a rule but it can't read or actively impose one now other than the reasonable diligence standard but aside from that we did we did move within fourteen days after the mandate was issued for  you don't have a judgment in district court fourteen days there after that deadline to have because there's no new judgment this is the real process that if you that if you can't get it reasonably considered in the district court because of the local rule  the that the reason time applies to when you file here and whether the that that reasonable time calendar at least applies during the initial appeal in the sort of process and one  need not have been discussed in the mandate the district courts a collateral matter the district court still has jurisdiction over it without regard to the mandate because it was an issue in this appeal and the appellate opinion the merits appeal says that says that it was not an issue  was not an issue because you didn't make it an issue well that's right your honor and by definition then the it was not required to be included in the mandate because it was not an issue within this court's jurisdiction on the merits zimmerman's you know counsel i made a mistake with respect to the timeliness of the trial the request that is not the case with the appeal of the request but the whole while i was trying to avoid you know the complicated kind of fees splitting  required in a case like this with a partial victory for civil rights plaintiff where all provisions were at issue on the appeal and then after that phase was over you know let the district court splice out the time that was compensable your point with this join motion where everybody agrees to how this town discussion of vs i take it what you're essentially saying is it's kind of awkward for the city of austin and our complain that you weren't diligent in the bakery to postpone agreed to differ on the issue it just makes more sense in a case like this to a degree to defer the complicated kind of time splitting that's required until until the appeal was final and so you know again that should be held against zimmerman especially d when well sure and that's how other parties have proceeded that's been alluded to another like in the eight circuit opinion cited in my opening brief but you know is on the appeal zimmerman could have could have lost the issue see one below he could have one more issues i mean the t conflicted by the local rule well i don't know i don't think it is i don't have the local rule in front of me your honor frankly but there's nothing in the local rule that says you can't provide a furious when the appellate these frankly i think if the local rule is looking the merit what i call the merits appeal and in fact he specifically asked this court to remain on the issue of these that was one of the specific requests in his opening brief yes that these the question of appellate these are the you'd rather be remanded this court declined to do that it didn't it specifically said it was not remanding issues because he hadn't even raised it the district court level and he said the court said we're not remained court issued probably should write a rule that's beyond this case for us but at least it's understandable that when you have a th circuit ruling that's not the end of the road you might have additional policies one option is to have i agree with your owners that if this is going to be a separate process from the rule fifty four process in terms of the bill at the federal courts are going to establish a rule like that which i don't think is ever going to say i can't find any authority wait that long because let's see if there are more apologies a potential successful show partition and obviously empathetically and that way there's only one appellate the application rather than multiple if i understand correctly he did file right after the start petition was denied he did it best because we issued we hit entered into a joint motion there was a joint agreed order to the district court not to this court to the district corps that this goes back to the the discussion i believe that you and i had that it might make sense somehow to have a rule like that for this court i don't think there is a rule but there might make sense but anyway let's say the rule is that you're right we could write a roll that's a hypothetical world right now there is no rule one way or the other it's just very unhelpful to lawyers at this point reasonable diligence is not an unreasonable thing for a court to read into the silence in the rules if we were to do that is there any reason to think that mr zimmerman was not reasonably doldrums yes i mean he didn't meet the diligence failed at the beginning because th the there is not there is a rule one way or the other it's federal rule of civil procedure fifty four and it's too late but i'm now coming to the period to read that you were working from which is a circuit level i don't accept the premise that there's not rule one way or the other but assume there isn't one of the governors that will or doesn't he could have yes he could have and it might make some sense that the reason in part and also because i didn't want to have to use the details of the spirit quest at that time which is one of those as everybody knows one of the most onerous task that the lawyers have really great because of that we reached an agreement but it was not an agreement in this court it was an agreement in the district court and it specifically said nothing here we didn't file a similar kind of agreement for him to file something the circuit level it was only in the district court and that the issue of jurisdiction and waiver was specifically refer and the placeholder with the question maybe four or estimated fees on appeal that we didn't do that non o know about these cases where such a placeholder existed in those cases so i don't know why you're taking the position sort of inconsistent with lee some of our case law that you can file here do you want to help me with that which was wrong with accepting the case law that we have already that you can could not you i think person i see on the screen next to you could have done that and then move on from there that he didn't do that well your honor i frankly i'm aware of the case law what i'm not aware of is the details of each of the cases for instance where you were on whether those cases in which that had just happened there was no briefing on it for mr zimmer but i've so i have looked at it in detail but there was no i'm not aware of whether in those cases your honor just referenced before the federal rules committee and the supreme court changed move it before saying we've got a problem with open ended deadlines or non no deadlines for feet and so i don't know for instance if that request for these that your honor was referencing that will happen within fourteen days of the judgment of this court so i just don't know the answer to that because i haven't can ask for these at any point even then that if we had known that was the rule back four years ago it would allow us d to assess whether we wanted to read to the abilities at that level before m accumulate for any reason so yes we're definitely prejudiced if that is the rule is there was that you get when did you all agree to this pardon my ignorance of the record when was this joint motion agreeing to postpone fee fees at the healthy time instead of the merits but yes we're prejudice because we can't evaluate whether it's worth the effort divide over those seats i'm sorry to interrupt i want to make sure i understand your point you're saying that the may two thousand and eighteen joint agreements to postpone discussion of fees is not relevant because it was two years ago and i'm not sure i understand it no i'm saying that it was to be over two filed a fee application in the wrong court i as i understand it at least in a court where the rules didn't provide for it but zimmerman did file shortly after the search was denied is that correct christmas eve twenty eight  agreed to postpone a healthy discussion and then by the time service denied your saying he's not allowed to file in either district court or in the court of appeals we've always said that even in many two thousand eight hundred there in that mission it says the motion has to be filed within fourteen days and it must must state the amount saw or provide a fair estimate of it and the amount sought under mr zimmerman's theory is included a completion of the meal but theirs are for those circuits for those circuits that have not our circuit but for the various circuits that have adopted local rules providing for a policy requests are those so just so to pick up on this isn't this supposed interpretation of rule fifty four where mr hicks left off st of all again it entirely ignores the specific documentation of time expended and hours expended requirement in the local rule but setting that so that issue alone is dispositive on this issue you cannot file an estimated i think you can i think he's addressed your point you saying that that is essentially in that under rule fifty four dollars was controversial contemplated will fifty four dollars a local court order including a local rule can change the requirements of rule fifty four dollars and that's done in various districts sometimes the deadlines are extended to thirty days instead of the fourteen so it can actually conflict that's not that's not questionable under fist circuit precedent they so but going back so but setting aside the local reso i think the local rule is dispositive one that the issue of an estimated appellate the request  you can't follow on consistent with the local rule in the western district but setting that aside the interpretation that the extending wrote applying rule fifty four dollars is deadlines to an estimated appellate the request as also as requesting also is contrary to the text in the policy of rule fifty four itself because rule fifty four dollars requires that use one of the requirements in that list of requirements is that you you follow within fourteen days and you specify the judgment quote unquote specify the judgment in titling the movement of the award you're not entitled as a civil rights civil rights plaintiff on the roll section one thousand nine hundred and eighty you're not entitled to prevailing party fees on appeal until you are the prevailing party after the appeal your  status as a prevailing party d in the trial court is up for grabs in the court of appeals it could change or be reversed and so you know it sometimes it's that happens so you're not a prevailing party you're not able to there's could potentially be merged with the merits appeal and all decided in want to appeal but that can never happen if you have an estimated appellate fee requests you can't merge that in the same way because it's always the the hours are you know you can't establish that there are reasonable and necessary in the specific time you spent the district court can't make that determination in a way to merge it so that it can all be decided within the same appeal that necessarily has to come after that so will fifty four just doesn't speak to this and that's why as your honor noted that we as we noted in our filings the various circuits have adopted their own rules just and ver a few points to clean up to finish off your  of jurisdiction there was a pharmacy with no change in the in the in the district court's decision and same situation we have here the fist circuit clearly held there was no issue it wasn't required to mention the fees in there in the