Fifth Circuit Holds That District Court Has “Ancillary Enforcement Jurisdiction” To Decide Belated Fee Petition, Then Affirms Denial of Fees

In Zimmerman v. City of Austin, Texas, No. 19-50857 (5th Cir. Aug. 13, 2020) , the plaintiff who won a partial victory in a First Amendment trial failed to file a timely attorney’s fee petition under  42 U.S.C. § 1988(d), either for the trial or the direct appeal (881 F.3d 378 (5th Cir. 2018)) affirming the judgment. On this second appeal, the panel holds that there was “ancillary enforcement jurisdiction” to hear the petition, but that the filing of the petition more than the 14 days after final entry of judgment provided by Fed. R. Civ. P. 54(d) waived the claim for fees.

On appeal for the first time, the defendant raised the issue of subject-matter jurisdiction to hear the late-filed petition.

The Fifth Circuit considers two possible routes to review. The first, under 28 U.S.C. § 1367(a) – known as “supplemental” jurisdiction – permits a party to raise claims otherwise not within federal court jurisdiction but “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”  This fails for two reasons. First, a claim for fees is deemed collateral to, not interdependent with, the merits of a case under White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 451 & n.13 (1982). Second, the federal court’s power to hear a supplemental claim expires when the case is dismissed, and here judgment had already been entered.

The second route, and the one that the panel elects, is the inherent power of “ancillary enforcement jurisdiction,” that “enable[s] a court to function successfully,” i.e., “to manage its proceedings, vindicate its authority, and effectuate its decrees” (quoting Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 257 n.1 (5th Cir. 2014)). This sweeps in matters such as sanctions and contempt to enforce a judgment. The panel holds that this doctrine also applies to the fee petition. “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’ …. 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.”

Having navigated the jurisdictional issue, the panel then affirms the order below denying fees. For the fees incurred at trial, “[e]ven 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.”

For the fees incurred on appeal, awarded per Fed. R. App. P. 39, the plaintiff failed to move properly in either court. “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.” The panel leaves the door slightly ajar for plaintiff, though. “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.”