IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-3582

_____________________

IN THE MATTER OF: UNITED STATES ABATEMENT CORPORATION,

a/k/a U.S.A. Corp.,

Debtor,

UNITED STATES ABATEMENT CORP.,

a/k/a U.S.A. Corp.,

Appellant,

v.

MOBIL EXPLORATION & PRODUCING U.S., INC.,

agent Mobil Oil Exploration & Producing Southeast, Inc., and

MOBIL EXPLORATION & PRODUCING NORTH AMERICA, INC.,

Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana 

_________________________________________________________________

(November 23, 1994)

Before KING, JOLLY, and STEWART, Circuit Judges.

KING, Circuit Judge:

This appeal involves essentially two questions: (1) whether

the bankruptcy court had subject matter jurisdiction to vacate an

order of contempt issued by that court against a creditor after

the creditor had filed a notice of appeal of that order; and (2)

whether the district court erred in holding that a corporate

debtor is not entitled to recover sanctions under 11 U.S.C. §
 

1 Our opinion in a related appeal, also decided today,

disposes of an assertion by USA that the claim of Mobil against

USA should be equitably subordinated. See United States

Abatement Corp. v. Mobil Exploration and Producing, U.S., Inc.

(In re United States Abatement Corp.), No. 93-3581, _____ F.3d

_____, slip op. at _____ (5th Cir. 1994).

2

362(h) against a creditor who willfully violates the automatic

stay of 11 U.S.C. § 362(a). For the reasons elaborated below, we

conclude: (1) the bankruptcy court had subject matter

jurisdiction to vacate its non-final contempt order; and (2) we

need not answer the question of whether a corporate debtor may

recover sanctions under 11 U.S.C. § 362(h) because we find that

the creditor did not violate the automatic stay. Accordingly, we

AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

 On March 13, 1992, United States Abatement Corporation

("USA") filed for reorganization pursuant to Chapter 11 of the

Bankruptcy Code. Prior to filing for reorganization, a dispute

arose between USA and Mobil Exploration and Producing, U.S., Inc.

("Mobil") which resulted in the termination by Mobil of two

contracts with USA in which USA was supposed to sandblast and

paint certain structures belonging to Mobil located on the Outer

Continental Shelf.1

As a result of this contractual dispute, on November 28,

1990 (approximately fourteen months prior to USA's filing for

reorganization), Mobil filed a complaint in federal court seeking

a declaration of the amount (if any) it owed USA under the two
3

contracts as well as damages for an alleged breach of those

contracts by USA. Mobil named as defendants USA, Delta Bank and

Trust Company (an assignee of USA's accounts receivable), and

various unpaid subcontractors and vendors ("lien claimants") who

provided services under the two contracts and who held potential

liens against Mobil's property. USA and the lien claimants filed

counterclaims against Mobil seeking to recover amounts due under

the contracts and subcontracts.

The filing of Chapter 11 bankruptcy by USA resulted in an

automatic stay of all actions against USA pursuant to 11 U.S.C. §

362(a); accordingly, the contractual suit by Mobil and the

counterclaims by USA and the lien claimants were administratively

closed by the district court. On March 17, 1992, Mobil filed a

motion in the bankruptcy court seeking to lift the automatic stay

so as to continue to litigate its contractual claim against USA. 

On March 31, 1992, one of the lien claimants filed a motion in

the district court seeking reinstatement of its counterclaim

against Mobil. Upon the request of the district court, USA filed

a memorandum in support of reinstatement of the counterclaims

against Mobil, asserting, inter alia, that "offensive" claims by

the debtor are not subject to the automatic stay.

The bankruptcy court denied Mobil's request to lift the

automatic stay. Mobil next filed a motion in the district court

seeking to reinstate USA's counterclaim against Mobil and

requesting summary judgment on that counterclaim. The district

court denied Mobil's motion to reinstate, reasoning that the
4

counterclaim was within the ambit of the bankruptcy court's

automatic stay. USA then asked the bankruptcy court to impose

sanctions against Mobil pursuant to 11 U.S.C. § 362(h) or, in the

alternative, to find Mobil in civil contempt of the bankruptcy

court's stay, asserting that Mobil's attempt to reinstate USA's

counterclaim was a willful violation of the stay. On February 8,

1993, the bankruptcy court denied USA's motion for sanctions

pursuant to 11 U.S.C. § 362(h) on grounds that such sanctions are

not available to corporations. However, the bankruptcy court

agreed that Mobil had committed civil contempt by seeking to

reinstate USA's counterclaim, ordered USA to file an itemization

of the damages it had incurred, and ordered that a further

hearing on damages would be held on request of any party.

On February 10, 1993, USA requested the bankruptcy court to

reconsider its ruling that sanctions under 11 U.S.C. § 362(h)

were not available to corporations. On February 12, 1993, Mobil

filed its first notice of appeal regarding the contempt order. 

Four days later, on February 16, 1993, Mobil filed a second

notice of appeal and also filed a motion asking the bankruptcy

court to reconsider its finding of contempt. On February 19,

1993, Mobil filed a third notice of appeal. 

On March 26, 1993, the bankruptcy court granted Mobil's

motion for reconsideration and vacated its order of contempt. In

re U.S. Abatement Corp., 152 B.R. 78 (Bankr. E.D. La. 1993). USA

timely appealed this decision to the district court, which

affirmed on grounds that reinstatement of a debtor's (i.e.,
 

2 Mobil has appealed the district court's dismissal of its

three appeals in order to preserve those claims should this court

reverse the district court. Those appeals, docketed as Nos. 93-

3622, 93-3623 and 93-3624, are being dismissed today in a

separate order.

5

USA's) original counterclaim was not an action "against the

debtor" within the meaning of 11 U.S.C. § 362; thus, Mobil's

motion to reinstate USA's counterclaim was not in contempt of the

automatic stay. In re U.S. Abatement Corp., 157 B.R. 278 (E.D.

La. 1993). Because its decision favored Mobil, the district

court dismissed Mobil's three appeals.2

USA appeals the district court's decision on three grounds. 

First, USA contends that the bankruptcy court lacked subject

matter jurisdiction to reconsider its contempt order because

Mobil's notice of appeal operated as the filing of an objection

pursuant to Bankruptcy Rules 9020(c) and 9033(b) which divested

the bankruptcy court of jurisdiction to reconsider. Because the

bankruptcy court was without jurisdiction, USA contends that the

district court's affirmance of the bankruptcy court's decision

should be reversed. Second, USA argues that Mobil's motion to

reinstate USA's counterclaim was a willful violation of the

automatic stay. Third, USA contends that corporate debtors such

as USA are entitled to recover sanctions under 11 U.S.C. § 362(h)

against those who willfully violate the automatic stay. We now

proceed to address each of these claims.

II. STANDARD OF REVIEW
6

This appeal involves pure questions of law. First, we must

determine whether the bankruptcy court had subject matter

jurisdiction to reconsider its earlier contempt order given that

Mobil had filed a notice of appeal to the district court. This

court conducts a de novo review to determine whether a lower

court had subject matter jurisdiction to entertain a case. 

Carney v. Resolution Trust Corp., 19 F.3d 950. 954 (5th Cir.

1994) (per curiam); Ceres Gulf v. Cooper, 957 F.2d 1199, 1204

(5th Cir. 1992). Second, we are asked to determine whether §

362(h) of the Bankruptcy Code permits a corporate debtor to

obtain damages for a willful violation of the automatic stay. 

Third, we are asked to determine whether the bankruptcy court

erred in vacating its earlier order of contempt on grounds that

the Bankruptcy Code's automatic stay does not prohibit the

reinstatement of a debtor's counterclaim. As these last two

issues also involve pure questions of law, we likewise conduct

plenary review. 

 III. ANALYSIS

A. Did the bankruptcy court have subject matter jurisdiction?

USA argues that Mobil's filing of a notice of appeal on

February 12, 1993 divested the bankruptcy court of all further

jurisdiction over the case. Thus, USA contends, the subsequent

filing by Mobil of a motion to reconsider was of no effect

because the bankruptcy court no longer had jurisdiction to

entertain the motion.
 

3 Rule 9020 is labelled "Contempt Proceedings" and provides

in relevant part:

(c) Service and Effective Date of Order; Review. The clerk

shall serve forthwith a copy of the order of contempt on the

entity named therein. The order shall be effective 10 days after

service of the order and shall have the same force and effect as

an order of contempt entered by the district court unless, within

the 10 day period, the entity named therein serves and files

objections prepared in the manner provided in Rule 9033(b). If

timely objections are filed, the order shall be reviewed as

provided in Rule 9033. . . .

Bankr. Rule 9020(c), 11 U.S.C.A. (West Supp. 1994).

 

4 Rule 9033 is labelled "Review of Proposed Findings of Fact

and Conclusions of Law in Non-Core Proceedings" and provides in

relevant part:

(d) Standard of Review. The district judge shall make a de

novo review upon the record or, after additional evidence, of any

portion of the bankruptcy judge's findings of fact or conclusions

of law to which specific written objection has been made in

accordance with this rule. The district judge may accept,

reject, or modify the proposed findings of fact or conclusions of

law, receive further evidence, or recommit the matter to the

bankruptcy judge with instructions.

Bankr. Rule 9033(d), 11 U.S.C.A. (West Supp. 1994).

 

5 We note that it is USA that has chosen to characterize the

notices of appeal filed by Mobil in the bankruptcy court as an

invocation of the review process contemplated by Bankruptcy Rule

9020. We address USA's arguments based on that characterization

without expressing any opinion on whether that is a correct

characterization.

7

More specifically, USA contends that Bankruptcy Rules 90203

and 90334 mandate that the only appropriate course of action in

this case (and the one that Mobil, in effect, pursued) was for

Mobil to seek review of the bankruptcy court's contempt decision

by filing objections thereto with the district court.5 The

district court would then be obligated to provide a de novo

review of the bankruptcy court's conclusions and determine
 

6 Because the bankruptcy court in this case never issued a

"final" order of contempt, we need not decide the question of

whether the constitutional doctrine of separation of powers

permits a bankruptcy court to issue an order of contempt. See

Bankr. Rule 9020, 11 U.S.C.A. advisory committee's note to 1987

amendments (West Supp. 1994) ("This rule, as amended, recognizes

that bankruptcy judges may not have the power to punish for

contempt."). 

8

whether an order of contempt was appropriate. USA argues that

the review procedure defined in Bankruptcy Rule 9020 is akin to

an appeal in that it divests the court that issued the order of

jurisdiction over the matter for which review is sought in the

district court.

As an initial matter, we note that the Bankruptcy Code

requires finality for appeals from bankruptcy court decisions to

the district court, unless the district court grants leave to

pursue an interlocutory appeal. 28 U.S.C. § 158(a); Smith v.

Revie (In re Moody), 817 F.2d 365, 366 (5th Cir. 1987). In this

case, the bankruptcy court's contempt order was not a final order

because no assessment of sanctions ever occurred.6 The Order of

Contempt stated that USA must "file an itemization of the actual

damages it has incurred as a result of Mobil's violation of the

automatic stay on or before February 25, 1993. Mobil may file a

response thereto on or before March 8, 1993. It is further

ordered that a hearing on the dollar amount of damages to be

imposed will be held upon the request of any of the parties." 

This language clearly contemplates an assessment of damages in

the future, and without an assessment of damages, the contempt

order is merely interlocutory.
9

It is well-settled that a civil contempt order is not

"final" for purposes of appeal unless two actions occur: (1) a

finding of contempt is issued, and (2) an appropriate sanction is

imposed. Cf. Petroleos Mexicanos v. Crawford Enter., Inc., 826

F.2d 392, 398 (5th Cir. 1987); Nasco, Inc. v. Calcasieu

Television & Radio, Inc., 752 F.2d 157, 159 (5th Cir. 1985);

accord Blalock Eddy Ranch v. MCI Telecommunications Corp., 982

F.2d 371, 374 (9th Cir. 1992); Dove v. Atlantic Capital Corp.,

963 F.2d 15, 17 (2d Cir. 1992); Bernard v. American Cyanamid Co.

(In re Tetracycline Cases), 927 F.2d 411, 412 (8th Cir. 1991);

Combs v. Ryan's Coal Co., 785 F.2d 970, 977 (11th Cir.), cert.

denied, 479 U.S. 853 (1986); Motorola, Inc. v. Computer Displays

Int'l, 739 F.2d 1149, 1154 (7th Cir. 1984); Weyerhaeuser Co. v.

International Longshoremen's and Warehousemen's Union Local 21,

733 F.2d 645, 645 (9th Cir. 1984). The requirement of finality

is no different when it is the bankruptcy court (rather than the

district court) which has failed to assess damages. Calcasieu

Marine Nat'l Bank v. Morrell (In re Morrell), 880 F.2d 855, 856-

57 (5th Cir. 1987); Shimer v. Fugazy (In re Fugazy Express,

Inc.), 982 F.2d 769, 775 (2d Cir. 1992). As we said in In re

Morrell:

Determinations of liability without an assessment of damages

are as likely to cause duplicative litigation in bankruptcy 

as they are in civil litigation and because bankruptcy 

litigants may appeal to district as well as to appellate 

courts, the waste of judicial resources is likely to be 

greater. The rule for appeals from bankruptcy decisions 

determining liability but not damages under 28 U.S.C. § 

158(d) must . . . be the same as the rule under [28 U.S.C.] 

§ 1291. 
 

7 USA argues that Bankruptcy Rules 9020 and 9033 do not

contain a provision similar to that contained in Bankruptcy Rule

8002(b) or Rule 4(a) of the Federal Rules of Appellate Procedure

which state that a timely filed motion for reconsideration

vitiates antecedent notices of appeal. Because we find that the

order of contempt "appealed" from was interlocutory, the special

provisions of Bankruptcy Rules 9020 and 9033 are inapplicable and

we need not address this issue at this time.

10

In re Morrell, 880 F.2d at 856-57. Indeed, in the specific

context of a bankruptcy contempt order, the Seventh Circuit has

held that, absent an assessment of sanctions, a bankruptcy

court's order holding a creditor in civil contempt of a discharge

injunction is not a "final judgment" from which an appeal may be

taken. In re Behrens, 900 F.2d 97, 100 (7th Cir. 1990).

We think that the same considerations militating in favor of

finality in the appeal context should operate in the context of

Bankruptcy Rule 9020, and we therefore hold that because the

bankruptcy court in this case had not yet assessed sanctions

against Mobil, the order of contempt entered by the bankruptcy

court was not yet sufficiently final so as to trigger the review

process of Bankruptcy Rules 9020 and 9033.7 Cf. Liberty Mutual

Ins. Co. v. Wetzel, 424 U.S. 737 (1976) ("where assessment of

damages or awarding of other relief remains to be resolved

[judgments] have never been considered to be `final' within the

meaning of 28 U.S.C. § 1291."). Absent finality, the contempt

order was merely an interlocutory order which the bankruptcy

court was free to reconsider and vacate.

USA argues that Mobil's filing of a notice of appeal

automatically divested the bankruptcy court of jurisdiction to
11

entertain Mobil's subsequent motion to reconsider. While it is

generally true that a timely filing of a notice of appeal will

divest a court of jurisdiction, this rule presupposes that there

is a final judgment from which to appeal. In this case, however,

we have determined that there was no final contempt judgment;

hence, there can be no appeal absent express permission of the

bankruptcy court to take an interlocutory appeal. 28 U.S.C. §

158(a); Smith v. Revie (In re Moody), 817 F.2d 365, 366 (5th Cir.

1987). As there is no right to appeal an interlocutory order,

the notice of appeal filed by Mobil was simply premature and of

no effect. Cf. Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987) (noting that a "notice of

appeal [is] ordinarily . . . ineffective [if] the judgment [is]

not final when appealed . . . ."); see generally James William

Moore, et al., 6 Moore's Federal Practice § 54.41[4] (2d ed.

1994). 

B. Does the automatic stay prohibit reinstatement of a debtor's

offensive counterclaim? Are § 362(h) sanctions available to a

corporate debtor?

 Section 362(h) of the Bankruptcy Code states that an

"individual" is entitled to recover damages which flow from a

willful violation of the automatic stay. 11 U.S.C. § 362(h). 

Both the bankruptcy court and the district court in this case

determined that the term "individual" as used in § 362(h) does

not include corporations; thus, both courts agreed that USA, a

corporation, is not entitled to recover sanctions under this
12

section. USA argues that this parsimonious interpretation of the

term "individual" is erroneous and asks this court to pronounce

that corporate debtors injured by willful violations of the

automatic stay are entitled to sanctions under § 362(h).

 In this case, however, we find that there has been no

violation of the automatic stay; thus, we need not reach the

question of whether § 362(h) sanctions are available to a

corporate debtor. The automatic stay of the Bankruptcy Code

extends only to actions "against the debtor." 11 U.S.C. §

362(a). We have previously held that counterclaims asserted by a

debtor are not actions "against the debtor" which are subject to

the automatic stay. First Wis. Nat'l Bank of Milwaukee v.

Grandlich Dev. Corp., 565 F.2d 879, 880 (5th Cir. 1978); accord

Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1205 (3d

Cir. 1991); Martin-Trigona v. Champion Fed. Sav. & Loan, 892 F.2d

575, 577 (7th Cir. 1989). If a debtor's offensive claims are not

subject to the automatic stay, a fortiori a creditor's motion to

reinstate and seek summary judgment of such non-stayed claims is

not subject to the automatic stay. Thus, in this case, Mobil's

motion to reinstate and obtain summary judgment on USA's

offensive contractual claims was not a willful violation of the

automatic stay. Because we find no violation of the automatic

stay by Mobil, the question of whether corporate debtors such as

USA are "individuals" entitled to recover sanctions under §

362(h) for injury suffered as a result of a willful violation of

the automatic stay need not be answered.
13

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.