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 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.

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 factuallyinterdependent-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 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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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.

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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“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 saysthat 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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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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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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