969 F.3d 564 (5th Cir. 2020), 19-50857, Zimmerman v. City of Austin

Docket Nº:19-50857
Citation:969 F.3d 564
Opinion Judge:Leslie H. Southwick, Circuit Judge:
Party Name:Donald ZIMMERMAN, Plaintiff-Appellant, v. CITY OF AUSTIN, TEXAS, Defendant-Appellee.
Attorney:Jerad Wayne Najvar, Esq., Austin M.B. Whatley, Najvar Law Firm, P.L.L.C., Houston, TX, for Plaintiff-Appellant. Renea Hicks, Law Office of Renea Hicks, Austin, TX, Anne L. Morgan, City of Austin Law Department, Litigation Division, Austin, TX, for Defendant-Appellee.
Judge Panel:Before Dennis, Southwick, and Ho, Circuit Judges.
Case Date:August 13, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 564

969 F.3d 564 (5th Cir. 2020)

Donald ZIMMERMAN, Plaintiff-Appellant,

v.

CITY OF AUSTIN, TEXAS, Defendant-Appellee.

No. 19-50857

United States Court of Appeals, Fifth Circuit

August 13, 2020

Page 565

[Copyrighted Material Omitted]

Page 566

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

Jerad Wayne Najvar, Esq., Austin M.B. Whatley, Najvar Law Firm, P.L.L.C., Houston, TX, for Plaintiff-Appellant.

Renea Hicks, Law Office of Renea Hicks, Austin, TX, Anne L. Morgan, City of Austin Law Department, Litigation Division, Austin, TX, for Defendant-Appellee.

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.

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.

Page 567

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, ___ U.S. ___, 139 S.Ct. 639, 202 L.Ed.2d 492 (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.

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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); then citing Peacock v. Thomas, 516 U.S. 349, 354 n.5, 116 S.Ct. 862, 133 L.Ed.2d 817 (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 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, 116 S.Ct. 862). 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, 116 S.Ct. 862 (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978)). The City argues that this means the district court did not have supplemental jurisdiction to decide Zimmerman's

Page 568

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, 116 S.Ct. 862, 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, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (quoting Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 170, 59 S.Ct. 777, 83 S.Ct. 1184 (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, 102 S.Ct. 1162. 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, 116 S.Ct. 862).

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, 114 S.Ct. 1673). It is uncodified, but it "remains a viable doctrine of ancillary jurisdiction and is often referred to as `ancillary enforcement jurisdiction.'" Id. (quoting Peacock, 516 U.S. at 356, 116 S.Ct. 862). "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...

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1 practice notes
  • Young v. Reliance Standard Life Insurance Co., 020121 TXWDC, Civ. 1:20-CV-739-LY-SH
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • February 1, 2021
    ...Standing and mootness are threshold jurisdictional issues which cannot be waived. See Zimmerman v. City of Austin, Texas, 969 F.3d 564, 567 (5th Cir. 2020) (stating that “questions of subject-matter jurisdiction cannot be forfeited or waived” and federal courts may ......
1 cases
  • Young v. Reliance Standard Life Insurance Co., 020121 TXWDC, Civ. 1:20-CV-739-LY-SH
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • February 1, 2021
    ...Standing and mootness are threshold jurisdictional issues which cannot be waived. See Zimmerman v. City of Austin, Texas, 969 F.3d 564, 567 (5th Cir. 2020) (stating that “questions of subject-matter jurisdiction cannot be forfeited or waived” and federal courts may ......