IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-40350
_______________
ERNESTO C. CASTANEDA,
and
OCTAVIO CASTANEDA
d/b/a Aanedas Bail Bonds,
Plaintiffs-Appellants,
VERSUS
EUGENIO FALCON, JR.,
and
ROMERO MOLINA,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
February 15, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ernesto Castaneda and Octavio Castaneda seek a civil contempt
order against Eugenio Falcon, Jr., and Romero Molina for alleged
non-compliance with a settlement agreement entered as a judgment.
A magistrate judge denied the requested contempt order. We dismiss
the appeal for lack of jurisdiction.
I.
Ernesto Castaneda, doing business as Castaneda’s Bail Bonds
and Companies, Ltd., and Octavio Castaneda, doing business as
Aanedas Bail Bonds Agency, sued Falcon, the sheriff of Starr
County, Texas, and Molina, the county attorney, alleging that
Falcon and Molina had implemented a plan to shut down the
Castanedas’ bail bonds businesses by falsely accusing them of being
in default on bonds and by arbitrarily refusing to approve bonds
they had executed. The Castanedas also allege that Falcon and
Molina allowed a competing bail bondsman, who also was a sheriff’s
office employee, to violate Texas law.
The parties consented to trial before a magistrate judge
pursuant to 28 U.S.C. § 636(c). He conducted a settlement
conference, at which time the parties placed an agreement on the
record; the magistrate judge entered a corresponding written
consent judgment. The agreement states that the Castanedas “shall
be authorized to submit future disputes involving bail bonding
practices and policies” to arbitration and specifies the
arbitration procedure to be used.
Several years later, the Castanedas filed a motion for civil
contempt, claiming that Falcon and Molina had violated the consent
judgment.1 The magistrate judge conducted an evidentiary hearing
1
Falcon and Molina responded that the Castanedas had refused to agree to
stay proceedings and to arbitrate. The contempt hearing record indicates that
Falcon and Molina also filed a motion to compel arbitration, but a written motion
to this effect cannot be located in the record. The magistrate judge took the
defendants’ motion to compel arbitration under advisement, noting that the
Castanedas had argued that the consent judgment gave them the option to use
(continued...)
2
on the motion, then stated, and neither party disputed, that most
of the alleged violations were cured or were being cured at that
time.
More than a year after the hearing, the magistrate judge
issued a memorandum opinion and order finding that, although Falcon
and Molina had not complied perfectly with the terms of the consent
judgment, the instances of non-compliance did not “rise[] to the
level which would give rise to a judgment of contempt.” The
magistrate judge further stated that “[t]he parties are reminded
that in the Agreed Judgment they consented to arbitrate any further
disputes. The court suggests that in the event future
disagreements arise that the parties use this means of resolving
their disagreements.”2
The Castanedas filed two timely notices of appeal from the
judgment, one to the district court and one to this court. The
record does not indicate that any action has been taken on the
appeal to the district court. Although apparently represented by
counsel before the magistrate judge, the Castanedas appear pro se
in their appeal to this court.3
(...continued)
arbitration but did require them to do so.
2
The opinion did not dispose of the motion to compel arbitration.
3
Both Castanedas signed the notice of appeal to this court. Only Ernesto
Castaneda has signed the Castanedas’ opening brief; the reply brief is signed by
both Castanedas.
3
II.
We must always be sure of our appellate jurisdiction and, if
there is doubt, we must address it, sua sponte if necessary. See
Chunn v. Chunn (In re Chunn), 106 F.3d 1239, 1241 (5th Cir. 1997).
The prevailing view is that a magistrate judge lacks the power to
adjudicate contempt proceedings; pursuant to 28 U.S.C. § 636(e), a
magistrate may only certify to the district court (or deny
certification of) facts possibly constituting contempt.4 Several
of these courts have held or implied that a magistrate judge may
address contempt pursuant only to § 636(e) and that § 636(c) does
not confer the power to adjudicate contempt.5 Accordingly, the
greater weight of authority is that a court of appeals is without
4
See, e.g., In re Hipp, Inc., 895 F.2d 1503, 1511 n.16 (5th Cir. 1990)
(noting in dictum that, because contempt is an inherent article III power,
magistrate judge has no authority to decide contempt motions and must certify
facts to the district court); Bingman v. Ward, 100 F.3d 653, 656-57 (9th Cir.
1996) (relying on civil contempt cases for proposition that magistrate judge may
not adjudicate criminal contempt); Taberer v. Armstrong World Indus., Inc.,
954 F.2d 888, 903-06 (3d Cir. 1992) (holding magistrate judge may not adjudicate
contempt, even under § 636(c), because contempt power falls only under § 636(e)
requiring certification of facts); Grimes v. City & County of San Francisco,
951 F.2d 236, 240 (9th Cir. 1991) (noting magistrate may only certify contempt
to district court); Proctor v. North Carolina, 830 F.2d 514, 516, 521-22 (4th
Cir. 1987) (holding that, when magistrate certifies facts pursuant to § 636(e)
in course of § 636(c) proceedings, district court must allow the parties to
present additional evidence); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d
1037, 1044 (7th Cir. 1984) (noting in dictum that, because contempt is an
inherent article III power, “under no aspect of the Magistrate[s] Act, can a
magistrate punish for contempt”); Collins v. Foreman, 729 F.2d 108, 117 (2d Cir.
1984) (noting in dictum that “even under section 636(c) references, the contempt
powers remain with the district court”); Cook v. Rockwell Int'l Co 907 F. Supp.
1460, 1463 (D. Colo. 1995) (holding magistrate has power only to certify civil
contempt facts to district court); King v. Thornburg, 762 F. Supp. 336, 342 (S.D.
Ga. 1991) (holding magistrate's limited contempt jurisdiction found only in
§ 636(e)); Stotts v. Quinlan, 139 F.R.D. 321, 323-24 (E.D.N.C. 1991) (holding
magistrate may only certify facts to district court for civil contempt in
§ 636(c) reference). But see Miami Valley Carpenters Dist. Council Pension Fund
v. Scheckelhoff, 123 F.R.D. 263, 266 (S.D. Ohio 1988) (holding that parties'
consent to magistrate's jurisdiction for all purposes under § 636(c) includes
adjudicating contempt).
5
See, e.g., Taberer, 954 F.2d at 903-06; Proctor, 830 F.2d at 521-22;
Stotts, 139 F.R.D. at 323-24.
4
jurisdiction to hear a direct appeal from a magistrate judge's
decision regarding contempt certification, because only § 636(c)
provides for direct appeals.6
We agree with this line of authority and conclude that,
because § 636(e) contains no provision for direct appeal, we are
without jurisdiction unless and until the district court acts and
a proper notice of appeal is filed from whatever action the
district court might take. The instant appeal is DISMISSED.
6
See, e.g., Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984)
(holding magistrate's decisions appealable to court of appeals only under
§ 636(c)); Glover v. Alabama Bd. of Corrections, 660 F.2d 120, 122-23 (5th Cir.
Unit B Oct. 1981) (denying rehearing of Glover v. Alabama Bd. of Corrections,
651 F.2d 1014 (5th Cir. Unit B July 1981)) (holding that, because magistrate's
decision “is not one of the district court,” it is not directly appealable under
§ 1291); Bennett v. General Caster Serv., 976 F.2d 995, 998-99 (6th Cir. 1992)
(holding magistrate judge's decisions not directly appealable unless magistrate
judge's power plenary as under § 636(c)); Siers v. Morrash, 700 F.2d 113, 115-16
(3d Cir. 1983) (holding that magistrate's decisions under § 636(b) are not final
and appealable pursuant to § 1291 until reviewed by district court and that when
Congress wants to allow direct appeal, as in § 636(c), it says so explicitly).
5