IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31265

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DAVID W. HOLLINGSWORTH, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

A federal magistrate judge tried defendant-appellant David W. 

Hollingsworth (“Hollingsworth”) for a petty offense committed on a federal 

enclave.1 The magistrate judge conducted a bench trial, entered a verdict of 

guilty, and sentenced Hollingsworth to six months in federal prison. 

1 The federal magistrate judge was authorized to hear Hollingsworth’s case under 18 

U.S.C. § 3401(b) (giving magistrate judges jurisdiction over trials for petty offenses), and 

under 28 U.S.C. § 636(a)(1) and (3) (conferring powers and duties of former United States 

commissioners upon federal magistrate judges, and authorizing magistrate judges to conduct 

trials under 18 U.S.C. § 3401). See also Fed. R. Crim. P. 58(b)(E) (requiring magistrate judge 

to notify defendant of right to trial, judgment, and sentencing before district judge unless 

charge is a petty offense).

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2015

Lyle W. Cayce

Clerk

 

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Hollingsworth appealed to the federal district court.2 The district court 

affirmed the judgment and sentence entered by the magistrate judge.3

Hollingsworth now appeals to this court.4 For the reasons explained below, we 

AFFIRM the judgment of the district court.

FACTS AND PROCEEDINGS

Hollingsworth was charged with violating 18 U.S.C. § 113(a)(5), a petty 

offense,5 at the Naval Air Station Joint Reverse Base New Orleans, a military 

base located in Belle Chasse, Louisiana (“Belle Chasse”). It is uncontested that 

Belle Chasse is a federal enclave under U.S. CONST. Art. I, § 8, cl. 17 (“Clause 

17”),6 and § 113 is effective on such enclaves. See 18 U.S.C. § 113(a) (providing 

that law applies “within the special maritime and territorial jurisdiction of the 

United States”). Hollingsworth objected to trial before the federal magistrate 

judge, but the magistrate judge held that she had jurisdiction to try 

Hollingsworth without his consent. Hollingsworth appealed his conviction to 

2 Hollingsworth was required to appeal first to the district court under 18 U.S.C. § 

3402. See also Fed. R. Crim. P. 58(g)(2)(B) (authorizing defendant to appeal magistrate 

judge’s judgment of conviction and sentence to district court).

3 See Rule 58(g)(2)(D) (providing that district court’s review “is the same as in an 

appeal to the court of appeals from a judgment entered by a district judge”).

4 This court has held that we have jurisdiction to hear appeals of this kind under 28 

U.S.C. § 1291. See United States v. Hughes, 542 F.2d 246, 248 n.3 (5th Cir. 1976); see also 

United States v. Peck, 545 F.2d 962, 964 (5th Cir. 1977) (hearing appeal of this kind without 

discussing basis for jurisdiction); United States v. Forcellati, 610 F.2d 25, 28 (1st Cir. 1979) 

(explaining that circuit courts to consider issue have held that jurisdiction exists under § 

1291). 

5 Hollingsworth concedes that his crime is a petty offense. Compare also 18 U.S.C. § 

113(a)(5) (imposing a maximum six month sentence of imprisonment on any person who 

commits a “[s]imple assault” on a person sixteen years of age or older), with id. § 3559(a)(7) 

(defining Class B misdemeanor as crime for which maximum term of imprisonment is six 

months or less), and id. § 19 (defining petty offense to include Class B misdemeanors).

6 Clause 17 gives Congress the power “[t]o exercise exclusive Legislation in all Cases 

whatsoever” over the District of Columbia and “to exercise like Authority over all Places 

purchased by the Consent of the Legislature of the State in which the Same shall be, for the 

Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”

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the district court, arguing that he had a right to a jury trial. The district court 

affirmed the conviction and sentence entered by the magistrate judge.

STANDARD OF REVIEW

We apply the same standard of review used by the district court. Peck, 

545 F.2d at 964 (“In our review we apply to the magistrate the same standard 

used by the district court.”). Thus we review the magistrate judge’s findings of 

fact for clear error and conclusions of law de novo. Compare Fed. R. Crim. P.

58(g)(2)(D) (providing that district court’s review of magistrate judge’s 

judgment “is the same as in an appeal to the court of appeals from a judgment 

entered by a district judge”), with Mid-Continent Cas. Co. v. Davis, 683 F.3d 

651, 654 (5th Cir. 2012) (“In an appeal from a district court’s final judgment 

following a bench trial, we review the district court’s findings of fact for clear 

error and review conclusions of law de novo.”).

DISCUSSION

I.

A.

Hollingsworth now argues for the first time that he has a constitutional 

right to trial before an Art. III judge.7 The Government argues that, because 

Belle Chasse is a federal enclave, Hollingsworth does not have a right to trial 

before an Art. III judge. 

In Palmore v. United States, 411 U.S. 389 (1973), the Supreme Court 

held that “Congress [is] not required to provide an Art. III court for the trial of 

criminal cases arising under its laws applicable only within the District of 

7 Because challenges to a court’s subject matter jurisdiction can never be forfeited or 

waived, see Union Pac. R.R. Co. v. Bhd. Of Locomotive Eng’rs & Trainmen Gen. Comm. of 

Adjustment, Cent. Region, 558 U.S. 67, 81 (2009), Hollingsworth may raise this challenge 

here even though he failed to raise it before the district court.

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Columbia.” Id. at 410.8 Hollingsworth was tried for the violation of a federal

criminal statute that applies only “within the special maritime and territorial 

jurisdiction of the United States.” 18 U.S.C. § 113(a)(5). Thus under Palmore, 

Hollingsworth has no constitutional right to trial before an Art. III court. See 

Jenkins, 734 F.2d at 1326 (holding that “the requirements of Article III are 

consistent with the establishment by Congress of non-Article III courts to 

enforce federal criminal laws” in Clause 17 federal enclaves).

Hollingsworth also argues that, even if Congress could refer his trial to 

an Article I court under Clause 17, the magistrate judge who heard his case is 

not a member of such a court. But Congress “exercise[s] within [federal 

enclaves] all legislative powers that the legislature of a state might exercise 

within the State, and may vest and distribute the judicial authority in and 

among courts and magistrates, and regulate judicial proceedings before them, 

as it may think fit, so long as it does not contravene any provision of the 

constitution of the United States.” Palmore, 411 U.S. at 397 (quoting Capital 

Traction Co. v. Hof, 174 U.S. 1, 5 (1899)). Hollingsworth fails to cite any 

constitutional provision that Congress violated when it referred his trial to a 

federal magistrate judge. Indeed, the particular facts of Hollingsworth’s case 

show that, as applied, Congress has not even entered the constitutional 

borderlands. Pursuant to Clause 17, Congress could have referred all trials for 

crimes committed at Belle Chasse to an Article I judge, including felony trials.

8 Hollingsworth argues that “[i]t is not clear” that this principle from Palmore applies 

to Clause 17 federal enclaves like Belle Chasse. But in Paul v. United States, 371 U.S. 245 

(1963), the Supreme Court stated that “[t]he power of Congress over federal enclaves that 

come within the scope of [Clause 17] is obviously the same as the power of Congress over the 

District of Columbia.” Id. at 263. Nothing in Palmore or later cases abrogate the Paul Court’s 

unambiguous statement. We hold that we are bound by Paul to apply Palmore in the present 

case. See United States v. Jenkins, 734 F.2d 1322, 1325-26 (9th Cir. 1983) (“Because clause 

17 does not distinguish between the District of Columbia and other federal enclaves, we find 

Palmore indistinguishable from the instant case and controlling.” (citing Paul, 371 U.S. at 

263)).

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See Palmore, 411 U.S. at 391 (explaining that Palmore was tried and found 

guilty of a felony in an Article I court). But Congress chose to refer only trials 

for petty offenses to federal magistrate judges. Moreover, it is not clear that 

Hollingsworth has a constitutional right to appeal to an Art. III court, yet

Congress granted him the right to appeal to not one but two Art. III courts.

We hold that Hollingsworth did not have a right to trial before an Art. 

III judge, and that his trial, conviction, and sentence before a federal 

magistrate judge was constitutional. Because we are bound “never to 

anticipate a question of constitutional law in advance of the necessity of 

deciding it,” United States v. Raines, 362 U.S. 17, 21 (1960), our holding applies 

only to defendants tried for petty offenses committed on federal enclaves

obtained by Congress pursuant to Clause 17.9

B.

In response to the dissent, we begin by noting a historical fact that the 

dissent passes over. From 1894 until 1948, Congress referred trials for 

misdemeanors committed on certain federal lands to the federal magistracy.10

9 We refer to petty offenses only to show that Congress acted well within its 

constitutional power under Clause 17. We do not decide the distinct question whether all 

trials for petty offenses fall outside the scope of Art. III.

10 Most of the statutes referring misdemeanor trials to the federal magistracy relate 

to the national parks. See Act of May 7, 1894, ch. 72, § 5, 28 Stat. 73, 74 (giving commissioner 

in Yellowstone National Park jurisdiction “to issue process in the name of the United States 

for the arrest of any person charged with the commission of any misdemeanor . . . , and to try 

the persons so charged, and, if found guilty, to impose the punishment and adjudge the 

forfeiture prescribed”); Act of Aug. 22, 1914, Pub. L. No. 63-177, § 6, 38 Stat. 699, 700-01 

(giving same jurisdiction to Glacier National Park commissioner); Act of June 30, 1916, Pub. 

L. No. 64-124, § 6, 39 Stat. 243, 245 (giving same jurisdiction to Mount Rainier National Park 

commissioner); Act of Aug. 21, 1916, Pub. L. No. 64-223, § 6, 39 Stat. 521, 523 (giving same 

jurisdiction to Crater Lake National Park commissioner); Act of June 2, 1920, Pub. L. No. 66-

235, §§ 7-8, 41 Stat. 731, 733-34 (giving same jurisdiction to Yosemite, Sequoia, and General 

Grant National Park commissioners); Act of Apr. 25, 1928, Pub. L. No. 70-317, § 6, 45 Stat. 

458, 460 (giving same jurisdiction to Mesa Verde National Park commissioner); Act of Apr. 

26, 1928, Pub. L. No. 70-320, § 6, 45 Stat. 463, 464-65 (giving same jurisdiction to Lassen 

Volcanic National Park commissioner); Act of Mar. 2, 1929, Pub. L. No. 70-1009, § 6, 45 Stat. 

1536, 1538 (giving same jurisdiction to Rocky Mountain National Park commissioner); Act of 

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The statutes referring such trials did not require the defendant’s consent as a 

prerequisite to the magistrate’s jurisdiction. See statutes cited supra note 10. 

This fact is relevant for two reasons. First, it shows that the dissent is wrong 

to claim that the federal magistracy has always been an “adjunct body,” 

“statutorily, historically, and doctrinally” (footnotes omitted). Second, the 

Supreme Court’s non-delegation caselaw requires us to consider historical 

context and practice when construing the “literal command of Art. III.” N. 

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64 (1982) 

(plurality opinion); see also NLRB v. Canning, 134 S. Ct. 2550, 2560 (2014) 

(holding that historical practice is important when courts interpret the 

Constitution, “even when the nature or longevity of that practice is subject to 

dispute, and even when that practice began after the founding era”). We have 

not found evidence that a defendant tried under the statutes referring 

misdemeanor trials to commissioners ever challenged the constitutionality of 

Apr. 19, 1930, Pub. L. No. 71-157, § 6, 46 Stat. 227, 228 (giving same jurisdiction to Hawaii 

National Park commissioner); Act of Aug. 19, 1937, Pub. L. No. 75-322, § 5, 50 Stat. 700, 702 

(giving same jurisdiction to Shenandoah National Park commissioner); Act of Mar. 6, 1942, 

Pub. L. No. 77-478, §§ 3, 5, 56 Stat. 133, 133-35 (giving Isle Royale National Park 

commissioner jurisdiction to try and sentence defendants for “violation[s] of the [park’s] rules 

and regulations,” which were misdemeanors and could result in a sentence of up to six 

months of imprisonment); Act of Apr. 29, 1942, Pub. L. No. 77-533, §§ 3, 5, 56 Stat. 258, 259-

60 (giving commissioner in Great Smoky Mountains National Park same jurisdiction as Isle 

Royale commissioner); Act of Apr. 23, 1946, Pub. L. No. 79-356, § 2, 60 Stat. 119, 119-20 

(giving commissioner in Sequoia National Park jurisdiction to try and sentence defendants 

for “commission within [Kings Canyon National P]ark of a petty offense against the law”). 

But Congress also extended limited petty crimes jurisdiction to commissioners in certain 

federal enclaves beyond the national parks. See, e.g., Act of Apr. 20, 1904, Pub. L. No. 58-124, 

§ 6, 33 Stat. 187, 188 (giving commissioner in Hot Springs Mountain Reservation jurisdiction 

to try and sentence defendants for any misdemeanor “or other like offense” when prescribed

punishment “d[id] not exceed a fine of one hundred dollars”). At least one statute authorized 

general-duty commissioners, sitting as adjuncts to a federal district court, to conduct 

misdemeanor trials arising in a neighboring federal enclave. See Act of Sept. 1, 1916, Pub. L. 

No. 64-250, 39 Stat. 676, 693 (giving “nearest United States commissioner for the District of 

Maryland” jurisdiction to try and sentence defendants for moving-vehicle offenses committed 

on Conduit Road, now called MacArthur Boulevard, when prescribed punishment did not 

exceed a fine of $40).

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the delegation. Indeed, in the only case we have identified addressing a 

commissioner’s jurisdiction to hear a misdemeanor case under such a statute, 

neither the defendant nor the court saw fit to even raise the issue. See Rider v. 

United States, 149 F. 164, 166-67, 170 (8th Cir. 1906) (vacating defendant’s 

misdemeanor conviction because he was tried before general commissioner, 

instead of commissioner specifically appointed to hear cases arising on federal 

land, as envisioned in statute). The fact that these statutes survived 

unchallenged for more than half a century ought to inform our constitutional 

analysis.

We also disagree with the dissent on two theoretical issues. First, the 

dissent insists that this case involves Art. III “federal judicial power” and 

proceeds as if this distinction carries the day. The Supreme Court once 

“suggested a rigid distinction between those subjects that could be considered 

only in Art. III courts and those that could be considered only in legislative 

courts.” Marathon, 458 U.S. at 63 n.14 (plurality opinion). But the Court’s

“more recent cases clearly recognize that legislative courts may be granted 

jurisdiction over some cases and controversies to which the Art. III judicial 

power might also be extended.” Id.; see also id. at 113 (White, J., dissenting) 

(stating that “[t]here is no difference in principle between the work that 

Congress may assign to an Art. I court and that which the Constitution assigns 

to Art. III courts”); Palmore, 411 U.S. at 402 (explaining that “the enforcement 

of federal criminal law” has never “been deemed the exclusive province of 

federal Art. III courts”). By relying on the outdated notion that federal judicial 

power can never be assigned to legislative courts, the dissent’s reasoning is 

wrong from the start.

Instead of asking whether this case involves “federal judicial power,” the

Supreme Court’s caselaw makes clear that we should ask a simpler question: 

whether the case arose in a “geographical area[ ], in which no State operate[s]

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as sovereign.” Marathon, 458 U.S. at 64 (plurality opinion). The Constitution 

and the Supreme Court’s caselaw define these areas. They include United 

States territories, the District of Columbia (“D.C.”), Indian territories, and 

foreign areas over which the United States has jurisdiction to try American 

citizens by treaty. See id. at 65 & n.16.11 And, as we explained above, the 

Supreme Court has left no doubt that the geographical exception applies to all

Clause 17 federal enclaves, not just D.C. See supra note 8. Because 

Hollingsworth’s crime occurred in a Clause 17 federal enclave, Congress had 

the power to refer Hollingsworth’s trial to a legislative court, regardless of the 

fact that the magistrate judge exercised federal judicial power that normally 

resides in the Art. III courts.

Second, the dissent argues that the federal magistracy is an “adjunct 

body.” Of course, the magistrate judge did not act as an adjunct in this case; 

she exercised full judicial power over Hollingsworth’s criminal trial. See Stern 

v. Marshall, 131 S. Ct. 2594, 2610-11 (2011) (explaining that a court that 

resolves all issues of law and fact, enters final judgment, and is reviewed under 

ordinary appellate standard “is no mere adjunct of anyone”). Thus the dissent 

must mean that the federal magistracy should be an adjunct body. The 

dissent’s only justification for this argument is its assertion that the federal 

magistracy is “different in kind from Article I ‘legislative courts.’” The dissent 

fails to explain how the federal magistracy is different in kind, and we discern 

11 The exception can also apply to crimes arising on American ships on the high seas 

or in foreign waters, at least when Congress has expressly given admiralty jurisdiction to a 

nearby legislative court. Compare id. at 74 n.27 (explaining that the Court had recognized 

Congress’s power to confer admiralty jurisdiction on “administrative tribunals”), with United 

States v. Flores, 289 U.S. 137, 149-150 (1933) (holding that United States’ admiralty 

jurisdiction extended not only to the high seas, but also to American vessels in foreign 

waters).

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nothing in the various statutes authorizing legislative courts to justify the 

claim. 

It is true that magistrate judges are appointed by district courts,12 not 

by the President with the advice and consent of the Senate, as legislative and 

territorial judges often are.13 But magistrate judges are not the only legislative 

judges appointed by other federal agencies or officers,14 or even the only ones 

appointed by Art. III judges.15 Magistrate judges receive a salary that 

approaches that of some legislative judges,16 and exceeds that of others.17 And 

magistrate judges’ terms of appointment and job protections are similar to 

those offered to other legislative judges.18 Magistrate judges have the 

professional competence and resources found in the legislative courts. We 

12 See 28 U.S.C. § 631(a) (authorizing appointment of magistrate judges by district 

courts).

13 See, e.g., D.C. Code § 11-1501(a) (providing that President appoints judges of the 

D.C. courts with advice and consent of the Senate); 10 U.S.C. § 942(b)(1) (same for judges of 

the Court of Appeals for the Armed Forces); 38 U.S.C. § 7253(6) (same for judges of the Court 

of Appeals for Veterans Claims); 48 U.S.C. § 1614(a) (same for judges of the District Court of 

the Virgin Islands). 14 See, e.g., 8 C.F.R. § 1003.1(a)(1) (providing that Attorney General appoints members 

of Board of Immigration Appeals); 41 U.S.C. § 7105(a)(2), (b)(2)(B) (providing that federal 

agencies appoint members of the Armed Services and Civilian Boards of Contract Appeals).

15 Certain Art. III judges may appoint legislative judges to the territorial courts when 

“necessary for the proper dispatch of the business of the . . . court.” 48 U.S.C. § 1614(a)

(authorizing certain Art. III judges to appoint members of District Court of the Virgin 

Islands); see also id. at § 1424b(a) (same for Guam); id. at § 1821(b)(2) (same for Northern 

Mariana Islands).

16 Compare 28 U.S.C. § 634(a) (allowing compensation for magistrate judges “equal to 

92 percent of the salary of a judge of the district court”), with, e.g., 48 U.S.C. § 1614(a) (setting 

Virgin Island judges’ salary “at the rate prescribed for judges of the . . . district courts”).

17 Compare 28 U.S.C. § 634(a) (allowing basic compensation for magistrate judges of 

about $180,000 as of 2014), with 5 U.S.C. § 5372a(b) (setting maximum, basic compensation 

for highest-paid member of Armed Services and Civilian Boards of Contract Appeals at about 

$160,000 as of 2015). 

18 Compare 28 U.S.C. § 631(e) (setting magistrate judges’ term at eight years), and id.

§ 631(i) (allowing removal “only for incompetency, misconduct, neglect of duty, or physical or 

mental disability”), with, e.g., 10 U.S.C. § 942(b)(2), (c) (setting Court of Appeals for the 

Armed Forces terms at fifteen years, and allowing removal only for “neglect of duty,” 

“misconduct,” or “mental or physical disability”), and 48 U.S.C. § 1614(a) (setting Virgin 

Island District Court terms at ten years, and allowing removal “by the President for cause”).

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discern no meaningful difference between the federal magistracy and the 

legislative courts. Indeed, because the federal magistracy’s members are 

appointed by federal judges instead of the President or the President’s 

appointees, we can have greater confidence in federal magistrate judges’ ability 

to fairly exercise federal judicial power and to avoid diminution of the 

separation of powers. Cf. Marathon, 458 U.S. at 63-64 (plurality opinion) 

(explaining that legislative courts exception to Art. III did not threaten the 

separation of powers). The “differen[ce] in kind” that motivates our decision is 

Congress’s “plenary authority” over Clause 17 federal enclaves. Id. at 75 

(explaining that Congress’s power over D.C. is “obviously different in kind from 

other broad powers conferred on Congress” in Article I).

The dissent contends that we overlook relevant Supreme Court opinions. 

But nothing in the cases the dissent refers to purports to overrule Palmore. 

Because Palmore remains good law, we do not understand the dissent’s 

objection to our reliance on it, especially since its relevance here is so obvious.19

The cases the dissent refers to, including CFTC v. Schor, 478 U.S. 833 (1986), 

have much to say about Congress’s attempts to assign a whole area of law to 

legislative courts. See id. at 853-54. They have little to say about Congress 

assigning cases that arise in a special geographic area to legislative courts. Cf. 

Marathon, 458 U.S. at 76 (plurality opinion) (explaining that Palmore did not 

mean that Congress could create legislative courts “in every area in which 

Congress may legislate,” only that it could create legislative courts when it 

exercises plenary power “in limited geographic areas”).

The dissent also raises several practical concerns about our decision. The 

dissent worries that “[f]ederal enclaves are neither few nor small.” But the 

19 Nor do we understand why the dissent accuses us of “leapfrog logic” for relying on 

Paul. Caselaw aggregates over time, and courts are tasked daily with applying the holdings 

of cases decided across decades or more.

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Constitution does not empower us to decide how much federal land is too much. 

Rather, the Constitution leaves that decision to the Government and the State 

legislatures. See Clause 17 (authorizing Congress to exercise exclusive 

jurisdiction over lands purchased by Congress for military installations “and 

other needful Buildings,” with “the Consent of the Legislature of the State in 

which the Same shall be”).

The dissent also faults us for failing to identify a “limiting principle” that 

will restrain Congress from referring “federal criminal felony (even capital) 

cases that might arise in a federal enclave” to federal magistrate judges. There 

is no death penalty in D.C., but the legislative courts there frequently try 

defendants for serious felonies. See, e.g., McKnight v. United States, 102 A.3d 

284 (D.C. 2014) (upholding defendant’s conviction in D.C. Superior Court for 

first-degree murder). If Congress may refer trials for crimes committed in D.C. 

to legislative judges, we do not understand why the dissent worries 

(hypothetically) about that happening in other Clause 17 federal enclaves. Of 

course, both in D.C. and elsewhere, Congress’s power to refer trials to 

legislative courts may turn on whether the relevant federal statute relates to 

an issue of national concern, or to “matters of strictly local concern” like local

criminal activity. See Palmore, 411 U.S. at 405-07.

The dissent contends that our decision will result in absurd 

consequences. It postulates that, where an oceanside federal enclave abuts 

state land, “whether a defendant has a right to be tried by an Article III judge 

will depend on which of the neighboring piers he is standing on.” But whenever 

events occur along jurisdictional borders, courts must engage in jurisdictional

line-drawing. To provide only one example, this court once held that the federal 

courts had concurrent jurisdiction with the state courts “if the crime charged 

. . . was committed on the ocean below the low-water mark.” Murray v. 

Hildreth, 61 F.2d 483, 485 (5th Cir. 1932). It follows that, should a defendant 

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commit a crime at high tide, just above the low-water mark, the federal courts 

could offer him no rescue. Jurisdiction often turns on just such narrow

considerations.

II

Hollingsworth argues that his conviction should be overturned because 

he was denied the right to a jury trial. But it is well-established that those 

charged with petty offenses do not have a right to a jury trial. See, e.g., Lewis 

v. United States, 518 U.S. 322, 325-26 (1996) (explaining that there is no right 

to jury trial for petty offenses, and that crimes with a six month maximum 

prison term are presumed petty). Hollingsworth concedes that this argument 

is foreclosed by binding precedent. 

We hold that Hollingsworth did not have a right to a jury trial.

CONCLUSION

For the reasons explained above, we AFFIRM the judgment of the 

district court.

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PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

With admiration for my colleague’s dissent, and while my heart travels 

in its direction, I concur fully in Judge Clement’s opinion. That we are 

addressing a petty offense is important. A person charged with a petty offense 

has no right to an indictment,1 no absolute right to counsel,2 and no right to a 

trial by jury.3 To my eyes, this reality enforces the power of the Congress over 

federal enclaves and simultaneously limits it.

1 Fed. R. Crim. P. 58(b)(1) (“The trial of a petty offense may also proceed on a citation 

or violation notice.”).

2 See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“[A]bsent a knowing and 

intelligent waiver, no person may be imprisoned for any [petty] offense, . . . unless he was 

represented by counsel at his trial.”).

3 Lewis v. United States, 518 U.S. 322, 323-24 (1996).

 

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STEPHEN A. HIGGINSON, Circuit Judge, dissenting:

“In all failures, the beginning is certainly the half of the whole.” George 

Eliot, Middlemarch (1874). The failure I apprehend is incremental 

reassignment of federal judicial power. From the first Judiciary Act, 

magistrates (later “commissioners,” presently “magistrate judges”) have 

assisted federal district judges, the primary courts of original jurisdiction in 

the federal system.1 As assistants, the federal magistracy is an Article III 

adjunct body—joining in aid, indispensably and even magisterially—but 

always part of, and with delimited Article III jurisdiction and authority. That 

1 See Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (“[F]or any crime or offence 

against the United States, the offender may, by any justice or judge of the United States, or 

by any justice of the peace, or other magistrate of any of the United States where he may be 

found agreeably to the usual mode of process against offenders in such state, and at the 

expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for 

trial before such court of the United States as by this act has cognizance of the offence.”); Act 

of March 2, 1793, ch. 22, § 4, 1 Stat. 333, 334 (“[B]ail for appearance in any court of the United 

States . . . may be taken by any judge of the United States . . . and by any person having 

authority from a circuit court, or the district courts of Maine or Kentucky to take bail; which 

authority . . . may [be] give[n] to one or more discreet persons learned in the law . . . .”); Act 

of March 1, 1817, ch. 30, 3 Stat. 350 (“[T]he commissioners who now are, or hereafter may 

be, appointed by virtue of the act, entitled ‘An act for the more convenient taking of affidavits 

and bail in civil causes, depending in the courts of the United States,’ are hereby authorized 

to take affidavits and bail in civil causes, to be used in the several district courts of the United 

States . . . .”).

 

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is true statutorily,2 historically,3 and doctrinally,4 and is so constitutionally. 

U.S. Const. art. III, § 1 (“The judicial power of the United States shall be vested 

2 28 U.S.C. § 636(b)(4) (“Each district court shall establish rules pursuant to which 

the magistrate judges shall discharge their duties.”); id. § 636(b)(1)(B) (“[A] judge may also 

designate a magistrate judge to conduct hearings, including evidentiary hearings, and to 

submit to a judge of the court proposed findings of fact and recommendations for the 

disposition, by a judge of the court . . . .”); id. § 636(c)(4) (“The court may, for good cause shown 

on its own motion, or under extraordinary circumstances shown by any party, vacate a 

reference of a civil matter to a magistrate judge under this subsection.”). Compare 18 U.S.C. 

§ 3401(a) (“When specially designated to exercise such jurisdiction by the district court or 

courts he serves, any United States magistrate judge shall have jurisdiction to try persons 

accused of, and sentence persons convicted of, misdemeanors committed within that judicial 

district.”), with id. § 3401(b) (“Any person charged with a misdemeanor, other than a petty 

offense may elect, however, to be tried before a district judge for the district in which the 

offense was committed.” (emphasis added)). 

3 Indeed, no congressional intent exists until 1996 to support as a constitutionally 

delegable responsibility the right to fully try federal criminal misdemeanor offenses over a 

defendant’s objection. And no congressional intent exists, ever, at all, for using the Enclave 

Clause of Article I as authority to so empower magistrate judges. See, e.g., To Abolish the 

Office of United States Commissioner, to Establish in Place Thereof Within the Judicial 

Branch of the Government the Office of the United States Magistrate, and for Other Purposes: 

Hearing on S. 945, H.R. 5502, H.R. 8277, H.R. 8520, H.R. 8932, H.R. 9970, and H.R. 10841 

Before the Subcomm. No. 4 of the H. Comm. on the Judiciary, 90th Cong. 62 (1968) (statement

of Warren Christopher, Deputy Att’y Gen. of the United States) (“[T]he performance of 

judicial functions by the magistrates would be entirely under the control of Article III judges. 

In fact, the magistrates themselves would function within the judicial branch, as satellite 

tribunals to the Article III courts.”); H.R. Rep. No. 94-1609, at 4 (1976) (“When the Congress 

enacted the Magistrates Act in 1968 . . . it created a system of full-time and part-time judicial 

officers who would perform various judicial duties under the supervision of the district courts

in order to assist the judges of these courts in handling an ever-increasing caseload.”); id. at 

11 (“The judge is given the widest discretion to ‘accept, reject or modify’ the findings and 

recommendation proposed by the magistrate, including the power to remand with 

instructions. Thus, it will be seen that under subparagraph (B) and (C) the ultimate 

adjudicatory power over dispositive motions, habeas corpus, prisoner petitions and the like 

is exercised by a judge of the court after receiving assistance from and the recommendation 

of the magistrate.”); see also Linda J. Silberman, Masters and Magistrates Part II: The 

American Analogue, 50 N.Y.U. L. Rev. 1297, 1303-05 (1975) (explaining that the creation of 

magistrates was prompted by “the need for assistance to judges” and that “[t]he jurisdiction 

being exercised [by magistrate judges] is clearly that of the article III federal district court, 

and the article III judge directly controls the magistrate’s powers” (footnote omitted)); Admin. 

Office of the U.S. Courts, A Guide to the Legislative History of the Federal Magistrate Judges

System 21 (1995) (“The Senate report [regarding the 1976 Amendments to the Federal 

Magistrates Act] noted that without the assistance furnished by magistrates in handling 

additional duties for the court, district judges would have to devote a ‘substantial’ portion of 

their time to various procedural matters rather than to trying cases.”). 

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in one Supreme Court, and in such inferior courts as the Congress may, from 

time to time, ordain and establish. The judges, both of the Supreme and 

inferior courts, shall hold their offices during good behaviour; and shall, at 

stated times, receive for their services, a compensation, which shall not be 

diminished during their continuance in office.”). For that reason, I do not agree 

that our federal magistracy is an Article I court system with Palmore

equivalence to congressional court systems over federal territories and the 

District of Columbia, available constitutionally, as the majority contemplates, 

4 See, e.g., Wingo v. Wedding, 418 U.S. 461, 469-70 (1974) (finding that the Federal 

Magistrates Act did not authorize magistrates to hold habeas corpus evidentiary hearings 

and explaining that “although the Act gives district judges broad authority to assign a wide 

range of duties to magistrates, Congress carefully circumscribed the permissible scope of 

assignment to only ‘such additional duties as are not inconsistent with the Constitution and 

laws of the United States’” (quoting 28 U.S.C. § 636(b))); United States v. Raddatz, 447 U.S. 

667, 681, 683 (1980) (holding that the district court’s referral of a motion to suppress to a 

magistrate did not violate Article III “so long as the ultimate decision is made by the district 

court,” and explaining that “Congress was alert to Art. III values concerning the vesting of 

decisionmaking power in magistrates. Accordingly, Congress made clear that the district 

court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing 

and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter, 

the entire process takes place under the district court’s total control and jurisdiction.”); 

Gomez v. United States, 490 U.S. 858, 871-72 (1989) (finding that the Federal Magistrates 

Act’s “additional duties” clause did not permit magistrates to conduct jury selection in felony 

trials without consent and explaining that “the carefully defined grant of authority to conduct 

trials of civil matters and of minor criminal cases [subject to special assignment, consent of 

the parties, and judicial review] should be construed as an implicit withholding of authority 

to preside at a felony trial. The legislative history, with its repeated statements that 

magistrates should handle subsidiary matters to enable district judges to concentrate on 

trying cases, and its assurance that magistrates’ adjudicatory jurisdiction had been 

circumscribed in the interests of policy as well as constitutional constraints, confirms this 

inference.” (footnotes omitted)); Peretz v. United States, 501 U.S. 923, 937 (1991) 

(distinguishing Gomez on the basis of consent and holding that when a defendant consents, 

the magistrate has jurisdiction to perform jury selection in a felony trial, finding no Article 

III structural protections implicated where the district court maintains “total control and 

jurisdiction” (internal citation and quotation marks omitted)). See generally Crowell v. 

Benson, 285 U.S. 22, 61-65 (1932) (approving statutory regime that allowed the United States 

Employees’ Compensation Commission to make initial fact-finding, but requiring substantial 

oversight by Article III judges, who must decide “fundamental or jurisdictional facts” de 

novo). 

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to exercise federal judicial power outside of Article III, and regardless of party 

consent.5

Instead, I would reiterate that the federal magistracy has been a 

longstanding adjunct body to Article III “constitutional courts,” different in 

kind from Article I “legislative courts,” to use the time-tested distinction set 

forth by Chief Justice Marshall in American Insurance Co. v. 356 Bales of 

Cotton, 26 U.S. 511, 512 (1828). At least as to constitutional courts whose life 

tenure and protected salaries give Article III its structural independence, 

judicial power flows through circuity that is a closed loop. See James E. 

Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the 

United States, 118 Harv. L. Rev. 643, 672 (2004) (“Article III creates an 

independent judicial department with a single Supreme Court to which all 

other federal courts, if any, must remain inferior. The familiar pyramidal 

shape of the judicial department flows from the combined requirements of 

unity, supremacy, and inferiority, and precludes Congress from establishing 

an independent set of courts invested with a portion of the judicial power and 

free from ultimate oversight in the Supreme Court.”). 

Notably, Congress has the power not only to make “all laws which shall 

be necessary and proper for carrying into execution [its own] foregoing powers” 

(hence laws establishing bankruptcy, immigration, and military tribunals, 

whose adjudicative powers exist alongside constitutional courts, often 

reviewed by them), but also, significantly, “all laws which shall be necessary 

and proper for carrying into execution . . . all other powers vested by this 

Constitution in the government of the United States, or in any department or 

officer thereof.” U.S. Const. art. I, § 8, cl. 18. Constitutional courts are 

5 Supreme Court’s precedent, see, e.g. Baldwin v. New York, 399 U.S. 66, 68 & n.5 

(1970), instructs that persons accused of petty offenses, not considered “crimes” at common 

law, have no due process right to be tried by a jury of their peers. On that point, I concur.

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comprised of “principal officers,” and our federal magistracy assisting them is 

proper congressional objective to effectuate “other powers” reposed in Article 

III. See McCulloch v. Maryland, 17 U.S. 316 (1819).

Finding constitutional birthright in Article I, Section 8, Clause 18’s 

“other powers” phrase—instead of Clause 17’s Seat of Government Clause or 

its Enclave Clause enhancement of Article I powers—enhances Article III 

courts’ discretion to refer matters to the federal magistracy for preliminary 

review and a recommended decision. See Mathews v. Weber, 423 U.S. 261, 270-

71 (1976). Indeed, as Congress has revised and expanded matters that may be 

so referred, the Supreme Court repeatedly has tested each subsequent 

delegation, when there is no consent, according to one constant principle, 

namely, that case-dispositive matters may be handled by magistrate judges 

provided that Article III district courts retain full and ultimate authority “to 

make an informed, final determination” of the case. See United States v. 

Raddatz, 447 U.S. 667, 682-83 (1980).6 

6 Well-developed non-delegation caselaw has been applied to the distinctive Article III 

role of our federal magistracy over half a dozen times by the Supreme Court, see, e.g., supra

note 4, as well as by our court. See, e.g., United States v. Johnston, 258 F.3d 361 (5th Cir. 

2001) (holding that a consensual delegation of the final judgment in a federal prisoner’s 

motion to vacate conviction or sentence to a magistrate judge violated the Constitution); Hill 

v. City of Seven Points, 230 F.3d 167 (5th Cir. 2000) (holding that a post-consent reference 

order signed by the district judge was required to vest authority in a magistrate judge for 

disposition of a summary judgment motion); Puryear v. Ede’s Ltd., 731 F.2d 1153 (5th Cir. 

1984) (holding that referrals of civil matters to magistrates pursuant to 28 U.S.C. § 636(c) 

are constitutional “[f]or essentially the reasons stated by our sister circuits”). Yet the 

majority opinion gives this caselaw of ours no reference, jumping back over half a century of 

doctrinal turbulence applicable to legislative courts to the Supreme Court’s most permissive 

precedent in Palmore v. United States, 411 U.S. 389 (1973). Even making that span, the 

majority must also use leapfrog logic connecting Palmore, a case addressing Congress’s 

creation of an “entirely new court system” in the District of Columbia “with functions 

essentially similar to those of the local courts found in the 50 States of the Union,” 411 U.S. 

at 409, to a decision a decade earlier, Paul v. United States, 371 U.S. 245 (1963), a case 

addressing California’s attempt to enforce price regulations on milk sold at military 

installations. Second, the majority cites broadly to Northern Pipeline Construction Co. v. 

Marathon Pipe Line Co., 458 U.S. 50 (1982) (declaring unconstitutional Congress’s broad 

grant of jurisdiction to bankruptcy judges over all civil proceedings arising under, or arising 

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Section 3401(b)’s diversion of core federal judicial power to try an 

accused over objection through conviction, and then also to sentence a 

convicted defendant to prison, subject only to appeals to district judges now 

reviewing with identical, often considerable, deference given by circuit courts, 

infringes the “total control and jurisdiction” constitutional courts must exercise 

over federal criminal trials. Raddatz, 447 U.S. at 681-83. As the majority 

decides, the Article III adjunct has become the Article I judge, at least in any 

relevant constitutional adjudicatory sense. There may be efficiencies to this 

arrangement, though the legislative history offers no showing that criminal 

trials are overburdening constitutional courts. Regardless, the Supreme Court 

has not shown solicitude to workload as a basis to pass off the essential 

attributes of power assigned to other branches of our government. See Clinton 

v. City of New York, 524 U.S. 417, 447-49 (1998); I.N.S. v. Chadha, 462 U.S. 

in or related to cases under, Title 11), yet only determinatively to its dissent for the

proposition that there is no principled difference between the work that Congress may assign 

to Article I courts and that which must be assigned, constitutionally, to Article III courts. 

Indeed, the Court in Marathon (1) explicitly disclaims the “ad hoc balancing” approach 

implicit in the majority’s reasoning—that “petty offenses” are less significant, id. at 70 n.25; 

(2) highlights that Palmore is limited to the “unique” District of Columbia and “territories 

outside the States” which are “specialized areas having particularized needs,” id. at 75-76 

(internal quotation marks omitted); (3) reinforces Congress’s power to create Article III 

adjuncts—performing “limited adjudicatory functions” and operating within Article III—

restrained by the requirement that Article III courts retain “the essential attributes of the 

judicial power,” id. at 77 n.29 (quoting Crowell, 285 U.S. at 51); and (4) crucially, in the 

Court’s only discussion of the Federal Magistrates Act, the Court vindicates Raddatz’s

principle that “the ultimate decision [would be] made by the district court,” id. at 79-83 & 

n.33 (quoting Raddatz, 447 U.S. at 683). Finally, the majority overlooks subsequent, limiting 

legislative court caselaw, above all Commodity Futures Trading Comm’n v. Schor, 478 U.S. 

833 (1986), whose multifaceted test likely is not met by full criminal trial authority exercised 

here, even if magistrate judges were, as I strongly contend they are not, Article I legislative 

courts. See generally Judith Resnik, “Uncle Sam Modernizes His Justice”: Inventing the 

Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 

90 Geo. L.J. 607, 638 (2002) (noting the personal as well as structural components of Schor’s 

otherwise “forgiving balancing test”). 

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919, 944-59 (1983).7 Finally, the implications of the majority opinion’s reliance 

on half-century old legislative court precedent, instead of the Supreme Court’s 

more recent, half-dozen cases calibrating Article III judicial power referred to 

magistrate judges, are far-reaching, acknowledging that Congress could 

expand an Article I magistracy alongside and independent of Article III federal 

district courts to try federal criminal felony (even capital) cases that might 

arise in a federal enclave.8 Federal enclaves are neither few nor small, and no 

7 The Supreme Court’s non-delegation doctrine applied to the political branches 

parallels the Raddatz principle emphasizing retained and final determining authority. See 

Mistretta v. United States, 488 U.S. 361, 393-97 (1989) (Congress may delegate the power to 

promulgate sentencing guidelines to an independent sentencing commission within the 

judicial branch, but Congress retains power to revoke or amend any or all of the guidelines). 

8 The majority limits its holding that Article III magistrate judges are in fact Article 

I enclave courts as they preside over petty offense trials of cases arising in federal land 

acquired pursuant to Clause 17, yet the majority refers to non-Clause 17 “federal enclaves” 

throughout its opinion. In support of its historical conclusion, the majority claims that 

Congress referred misdemeanor trial authority to the federal magistracy in numerous 

statutes from 1894 until 1948. The cited statutes pertain to non-Clause 17 federal land, 

mostly national parks. See Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 529-30 (1938) 

(explaining that Clause 17 is “not the sole authority for the acquisition of jurisdiction” and 

noting that “[t]he United States has large bodies of public lands. These properties are used 

for forests, parks, ranges, wild life sanctuaries, flood control, and other purposes which are 

not covered by Clause 17.”). As the majority points out, the first commissioner position was 

authorized for Yellowstone National Park, which was under exclusive federal jurisdiction 

though not acquired pursuant to Clause 17. See Admin. Office of the U.S. Courts, A Guide to 

the Legislative History of the Federal Magistrate Judges System 2 (1995); Yellowstone Park 

Transp. Co. v. Gallatin Cnty., 31 F.2d 644, 645 (1929); Collins, 304 U.S. at 529-30. It is also 

important to note that the Act of October 9, 1940 conferred trial jurisdiction, subject to the 

consent of the defendant, to United States commissioners over petty offenses that were 

committed “in any place over which the Congress has exclusive power to legislate or over 

which the United States has concurrent jurisdiction . . . .” Act of October 9, 1940, ch. 785, 54 

Stat. 1058. Again, this was not limited to Clause 17 federal enclaves, and this Act became 

the basis for the current magistrate judge system. See 28 U.S.C. § 636(a)(1) (giving U.S. 

magistrate judges “all powers and duties conferred or imposed upon United States 

commissioners”). 

Adding another layer of incongruity, the statute under which Hollingsworth was 

convicted, 18 U.S.C. § 113, applies to “the special maritime and territorial jurisdiction of the 

United States,” which includes much more than Clause 17 federal property. See 18 U.S.C. 

§ 7 (defining the “special maritime and territorial jurisdiction of the United States” as 

including, among other things: “[t]he high seas [and] any other waters within the admiralty 

and maritime jurisdiction of the United States;” vessels, aircrafts, and space vehicles owned 

by the United States; “lands reserved or acquired for the use of the United States, and under 

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limiting principle is offered other than that presently Congress has refrained 

from extending the orbit of first-instance criminal trial adjudication to the 

nearly three thousand other offenses set forth in its federal criminal code. See 

Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1054 (7th Cir. 1984) 

(Posner, J., dissenting) (“Maybe section 636(c) [conferring civil jurisdiction on 

magistrate judges with parties’ consent] is a small violation of the 

Constitution. But the time to deal with this small violation is now, before it 

sends down roots. . . . It will be harder to enforce the Constitution against the 

excesses of the magistrate system when magistrates try 10 or 20 or 50 percent 

of the nation’s federal trials—when . . . section 636(c) is indispensable to coping 

with the federal judicial workload—than it is today.”). 

It is said that a well-built house requires but little repairs. Article III 

federal district judges are not over-burdened in their most essential judicial 

the exclusive or concurrent jurisdiction thereof;” and “[a]ny island, rock, or key containing 

deposits of guano”). The majority overlooks this further discrepancy in order to draw analogy 

with Palmore, in which the Court narrowed its holding to laws “applicable only within the 

District of Columbia.” Palmore, 411 U.S. at 410. 

The majority emphasizes that Hollingsworth was charged for a crime that is 

applicable in “federal enclaves,” but the term “federal enclave” can refer to a variety of 

federally owned land—land that is exclusively, partially, or concurrently under the 

jurisdiction of the federal government vis-à-vis the States. The jurisdictional status depends 

on which statute was in place when the land was acquired by the federal government or when 

the federal government accepted jurisdiction. Roger W. Haines, Jr., Federal Enclave Law 17 

(2011). Already half a century ago, six million acres of land were under “exclusive” federal 

jurisdiction and thirty-six million were under either “partial” or “concurrent” federal 

jurisdiction. Id. at 56. These lands include military bases, national forests and parks, federal 

prisons, and public health facilities, among other property. Id. at 58-72. Also problematic 

for the majority’s position, within one federal property there can exist numerous 

jurisdictional statuses. For instance, the San Diego Naval Station consists of federally owned 

land that is under partial and exclusive federal jurisdiction as well as some federally owned 

land under state jurisdiction. Id. at 243, 275. Under the majority’s opinion, whether a 

defendant has a right to be tried by an Article III judge will depend on which of the 

neighboring piers he is standing on; or if the defendant is standing on the main public road 

through the Naval Station, which was retroceded to the State, Article III protections 

apparently would attach, in the middle of the enclave. See id. at 243-45. 

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function, trying federal criminal cases. Without consent, persons accused of 

federal offenses should not lose their liberty except after trial in a 

constitutional court, unless an Article III judge reserves “the ultimate 

decisionmaking authority.” Marathon, 458 U.S. at 79 (citing Raddatz, 447 U.S. 

at 682).

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