### 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, J r., 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.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, n o ting that the

Castanedas had argued that the consent judgment gave them the option to use



### (continued...)

2 I.

Ernesto Castaneda, doing business as Castaneda’s Bail Bonds

and Companies, Ltd., and Octavio Castaneda, doing business as

Aanedas Bail Bonds Agency, sued F alcon, 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

b e authorized to submit future disputes involving bail bonding

practices and policies” to arbitratio n 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

jud gment. 1 

### The magistrate judge conducted an evidentiary hearing

### (...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. O nly Ernesto

Castaneda has signed the Castanedas’ opening brief; the reply brief is signed by

both Castanedas.



### 3 on the motion, then stated, and neither party disputed, that most

of the alleged violations wer e cured or were being cured at that

time.

More than a year after the hearing, t he 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 ins tances of non-compliance did not “rise[] to the

level which w ould 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

disag reements arise that the parties use this means of resolving

their disagreements.” 2



### The Castanedas file d 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. 34 See

, e.g.

, I n re Hipp, Inc.

, 895 F.2d 1503, 1511 n.16 (5th Cir. 1990)

(noting in dictum that, beca u se contempt is an inherent article III power, magistrate judge has no authority to decide contempt motions and must certify

facts to the district court); Bing man v. Ward , 100 F.3d 653, 656-57 (9th Cir.

1996) (relying on civil contempt cases for proposition that magistrate judge may

not adjudicate crimi nal contempt); T aberer 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); P roctor 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 d ictum that, because contempt is an

inherent article III power, “und er 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) (holdin g 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 f acts to district court for civil contempt in

§ 636(c) reference). B ut 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 a t 521-22;

Stotts , 139 F.R.D. at 323-24.



### 4 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 without6 See

, e.g.

, Trufant v. Autocon, Inc. , 729 F.2d 308, 309 (5th Cir. 1984)

( holding magistrate's decisions appealable to court of appeals on ly under

§ 636(c)); Glover v. Alabama Bd. of Corrections

, 660 F.2d 120, 122-23 (5th Cir.

U n it 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 jurisdiction to hear a direct appeal from a magistrate judge's

decision regarding contempt c ertification, 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.