* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30862 

_____________________

FELTON DOMINIQUE, SR., ET AL

Plaintiffs,

v.

GEORGIA GULF CORPORATION, ET AL

Defendants

------------------------------

BORIS F NAVRATIL

Movant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(95-CV-72)

_________________________________________________________________

February 27, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Boris F. Navratil appeals the order holding him in contempt

of court under Rule 16(f) of the Federal Rules of Civil Procedure

for failing to comply with an order of the district court

pertaining to submission of a joint status report. For the

reasons assigned, we vacate and remand. 
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Boris F. Navratil represents Georgia Gulf Corporation

("Georgia Gulf") in a personal injury suit filed against it by

Felton Dominique and Sucelia Dominique in the Eighteenth Judicial

District Court of the Parish of Iberville, Louisiana. Upon

motion of Georgia Gulf, the suit was removed to the United States

District Court for the Middle District of Louisiana, which

possessed subject matter jurisdiction based upon diversity of

citizenship under 28 U.S.C. § 1332. 

The magistrate judge assigned to the case issued an order

setting a date for a status conference and directing John

McClindon, counsel for the Dominiques, to file a joint status

report on the case. McClindon filed the report in a timely

fashion, and the status conference was held as scheduled.

On May 11, 1995, the case was reassigned to District Judge

Tucker L. Melançon, a visiting judge from the Western District of

Louisiana, Monroe Division. On May 19, 1995, Judge Melançon

issued an order entitled "Attention Attorneys," to which a

scheduling order was attached. The scheduling order required a

joint meeting of the parties by June 16, 1995, and the submission

of a joint status report to Judge Melançon by June 26, 1995. The

instructions accompanying that scheduling order required that the

status report address all matters outlined in a form joint status

report attached to the scheduling order, and that the status

report follow the same format as the form joint status report. 

The instructions also stated that the attorneys of record were
3

jointly responsible for the submission of the status report, and

the "Attention Attorneys" order stated that a failure to submit a

report in compliance with the instructions would "invite the

imposition of the sanctions authorized by F.R. Civ.P. 16(f) or

such other sanctions as the court deems appropriate."

The instructions accompanying the scheduling order also

stated in pertinent part that 

[c]ompliance with [instructions regarding the initial 

exchange of witness and exhibit lists, the joint meeting of 

the parties, and the submission of the joint status report] 

is required only in connection with the First Scheduling 

Order. Repetitive compliance with [these instructions] is 

not required. 

 

In response to the scheduling order, McClindon mailed to

Judge Melançon a copy of the joint status report previously

submitted to the magistrate judge along with a letter updating

developments between the parties. However, the previously

submitted joint status report and the letter did not contain all

of the information included in the form status report attached to

Judge Melançon's scheduling order. 

Judge Melançon subsequently made a minute entry ordering the

attorneys to submit a joint status report in compliance with the

instructions accompanying the scheduling order by July 19, 1995. 

The order also required the attorneys to submit memoranda

explaining their noncompliance with the scheduling order and to

appear before the court on July 21, 1995, and show cause why they

should not be sanctioned for failure to comply with the pretrial

order requiring the filing of the joint status report. 
4

Both attorneys timely submitted the memoranda required by

the show-cause order, and McClindon submitted a Joint Status

Report complying with the content requirements of the

instructions accompanying the scheduling order on July 14, 1995. 

Navratil's memorandum explained that he considered the "legality

and efficacy of [the scheduling order to be] in serious doubt"

because the scheduling order was signed by a deputy clerk for the

Western District of Louisiana. Navratil contended that, under

Middle District rules, deputy clerks lack the authority to issue

scheduling orders. Additionally, Navratil's memorandum stated

that he and McClindon believed that the submission of an entirely

new status report would have constituted a repetitive compliance

not required by the instructions accompanying the scheduling

order. 

On July 21, 1995, both attorneys appeared at the United

States District Court House at Baton Rouge for the show-cause

hearing, and were informed by the clerk that Judge Melançon was

not there. After reaching Judge Melançon in his chambers in

Monroe, the clerk related to the attorneys Judge Melançon's

verbal order that they appear before him at the Monroe courthouse

on July 28, 1995.

Navratil filed an application with this court for a writ of

mandamus, seeking to have the verbal order set aside. The

application was denied. Judge Melançon subsequently modified his

verbal order and rescheduled the show-cause hearing for August

11, 1995, in Baton Rouge.
5

The show-cause hearing took place as scheduled on August 11. 

After questioning both attorneys at length about the contents of

the memoranda that they had submitted pursuant to the show-cause

order, Judge Melançon entered a judgment of contempt against

Navratil and imposed a fine of $250. Navratil appeals the

contempt judgment and fine.

II. ANALYSIS

A. STANDARD OF REVIEW

We review a contempt order for abuse of discretion, and we

review the district court's underlying factual findings under the

clearly erroneous standard. Martin v. Trinity Indus., Inc., 959

F.2d 45, 46-47 (5th Cir 1992). 

 

B. JURISDICTION

We must first determine whether this court possesses

jurisdiction over the instant appeal. Vincent v. Consol.

Operating Co., 17 F.3d 782, 785 (5th Cir. 1994). Jurisdiction of

this appeal hinges upon whether Judge Melançon's contempt order

was civil or criminal in nature. "Ordinarily civil contempt

orders are not viewed as final, appealable orders under 28 U.S.C.

§ 1291." Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir.

1990). However, criminal contempt orders are considered final,

and are thus immediately appealable. Id. When a contempt order

is partially civil and partially criminal in nature, it is
6

classified as criminal for purposes of determining the

appropriateness of appellate review. Id. at 567. 

Whether a contempt order is civil or criminal in nature

depends upon the primary purpose of the sanction that it carries. 

Id. at 566. "If the purpose of the sanction is to coerce the

contemnor into compliance with a court order, or to compensate

another party for the contemnor's violation, the order is

considered purely civil." Id.; see also International Union,

UMWA v. Bagwell, 114 S. Ct. 2552, 2558 (1994). "If the purpose

of the sanction is to punish the contemnor and vindicate the

authority of the court, the order is viewed as criminal." Lamar

Fin. Corp., 918 F.2d at 566. "[A] `flat, unconditional fine'

totalling even as little as $50 announced after a finding of

contempt is criminal if the contemnor has no subsequent

opportunity to reduce or avoid the fine through compliance." 

International Union, 114 S. Ct. at 2558. 

In this case, the fine imposed by Judge Melançon contained

no indicia of a coercive or compensatory purpose. Payment of the

fine was not conditioned in any way on Navratil's future conduct. 

No further act of compliance on the part of Navratil was

necessary because a joint status report containing all of the

information that Judge Melançon required had been submitted

before the entry of the contempt order. 

Furthermore, the fine was paid into the court, and thus was

not compensatory in nature. Judge Melançon made no findings of

fact regarding any expenses incurred by the court as a result of
7

Navratil's noncompliance with the scheduling order. Indeed, a

requirement that the fine be paid to McClindon or the Dominiques

would not have rendered it compensatory because the fine would

have in no way compensated the party to whom it was paid for any

loss occasioned by Navratil's noncompliance. The instructions

accompanying the scheduling order indicated that both attorneys

were jointly responsible for submitting the status report. 

McClindon had failed to comply with the scheduling order to the

same extent as Navratil, and thus had suffered no loss

attributable to Navratil's noncompliance. 

The absence of a coercive or compensatory purpose indicates

that the purpose of the fine accompanying the contempt order was

purely punitive, rendering the contempt order criminal in nature,

and thus, immediately appealable. Having established that we

possess jurisdiction over this appeal, we turn to the merits of

Navratil's claims. 

C. THE LEGITIMACY OF THE CONTEMPT ORDER

Navratil contends that the contempt order is both

procedurally and substantively defective. He contends that the

order is procedurally improper because (1) the court failed to

provide him with adequate notice of the criminal nature of the

show-cause hearing, (2) the court failed to allow Navratil to

exercise his rights to counsel and to call witnesses on his

behalf, and (3) Judge Melançon declined to recuse himself from

presiding over the contempt hearing. Navratil also contends that
8

the contempt order is substantively flawed because (1) the

scheduling order was ambiguous, and (2) the scheduling order

failed to comply with the Federal Rules of Civil Procedure and

applicable local rules.

1. Procedural Claims

The contempt order is procedurally flawed on a number of

grounds. First, the district court's show-cause order failed to

provide Navratil with sufficient notice to apprise him of the

fact that the show-cause hearing was in actuality a criminal

contempt hearing. 

Rule 42(b) of the Federal Rules of Criminal Procedure

provides in relevant part that

[a] criminal contempt except as provided in subdivision (a) 

of this rule shall be prosecuted on notice. The notice 

shall state the time and place of hearing, allowing a 

reasonable time for the preparation of the defense, and shall

state the essential facts constituting the criminal contempt

charged and describe it as such. 

FED R. CRIM. P. 42(b). The requirement that the notice describe

the criminal contempt as such "is intended to obviate the

frequent confusion between criminal and civil contempt

proceedings . . . ." FED. R. CRIM. P. 42 advisory committee's

note. 

Adequate notice that a hearing contemplates criminal

contempt does not necessarily require use of the term "criminal

contempt." Hopkins v. Jarvis, 648 F.2d 981, 985 (5th Cir. Unit B

1981). However, the notice must at least "insure a realization

by contemnors that a prosecution for criminal contempt is
9

contemplated." United States v. United Mine Workers, 330 U.S.

258, 298 (1947). 

In American Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d

523 (5th Cir. 1992), this court recognized that an order

instructing a party to show cause why he should not be held in

contempt may provide adequate notice that the contempt

contemplated is criminal in the absence of an express reference

to the criminal nature of the contempt charged. Id. at 530-31. 

In that case, the contemptuous behavior charged -- submission of

unsigned declarations -- was of a type that could not be remedied

by any means other than punitive sanctions, thus indicating that

the contempt charged had to be criminal rather than civil in

nature. Id. at 531. However, the show-cause order contained

the word "contempt," which allowed the noticed party to determine

by process of elimination that the contempt charged was criminal

based on the fact that the contemptuous conduct in question could

not have been alleviated through coercive or compensatory

sanctions. Id. at 526. 

In this case, the district court's show-cause order in no

way indicated that the court was contemplating holding counsel in

contempt, either civil or criminal. It merely apprised the

attorneys of an opportunity to "show cause why they should not be

sanctioned." 

Rule 16(f) of the Federal Rules of Civil Procedure provides

that judges may impose a large variety of sanctions for violation

of a pretrial order, including, among others, striking pleadings,
10

evidentiary limitation, payment of attorney's fees, and contempt. 

FED. R. CIV. P. 16(f). Given this broad array of potential

sanctions available to the district court, the purposes behind

the notice provision of FED. R. CRIM. P. 42(b) could only be

served by a notice indicating that the court was specifically

contemplating contempt rather than some other sanction. In the

absence of a reference to contempt in the show-cause order, the

individual facing sanctions could not know that he faced a

contempt order, much less a criminal contempt order. Because the

district court's show-cause order provided no such indication, it

failed to meet the notice requirement of Rule 42(b).

The contempt proceeding failed to meet other procedural due

process requirements as well. Except in the case of summary

contempt, which is limited to a narrowly defined range of

contempt that occurs in open court, defendants in criminal

contempt actions possess a right to counsel and a right to call

witnesses on their behalf. In re Stewart, 571 F.2d 958, 964 (5th

Cir. 1978) (citing In re Oliver, 333 U.S. 257, 275 (1948)). In

this case, Navratil never had a meaningful opportunity to

exercise these rights because he had no way of knowing that the

show-cause hearing involved criminal contempt until the moment

that the district court pronounced him in contempt of court. 

Additionally, the contempt proceeding was procedurally

suspect because Judge Melançon both prosecuted and presided over

the proceeding. The assumption of both roles is improper because
11

it denies the defendant in the criminal contempt proceeding an

impartial decision maker. American Airlines, 968 F.2d at 531. 

In American Airlines, this court held that a district court

judge improperly served the dual function of judge and prosecutor

in a criminal contempt proceeding based on the following acts on

the part of the judge in the proceeding:

First, the judge recited the facts from his memory and as he

had been able to reconstruct them from reviewing the files 

and talking to his staff. The attorneys were then invited 

to respond to his statement. . . . At various points during

each attorney's statement, the judge interrupted and asked 

questions about the facts and the attorney's intent and 

understanding regarding what had transpired. 

Id. at 526. In this case, Judge Melançon conducted the showcause hearing in a substantially similar manner. Judge

Melançon's assumption of a dual role of prosecutor and judge thus

rendered the contempt proceeding procedurally improper.

Finally, Navratil argues that Judge Melançon was obliged to

recuse himself from presiding over the contempt hearing by Rule

42(b). Rule 42(b) provides that "[i]f the contempt charged

involves disrespect to or criticism of a judge, the judge is

disqualified from presiding at the trial or hearing except with

the defendant's consent." FED. R. CRIM. P. 42(b). Navratil

claims that Judge Melançon held him in contempt because he was

personally offended either by Navratil's questioning of the

legality of the scheduling order or by his filing an application

for writ of mandamus. Navratil contends that the fact that he

was sanctioned and that McClindon was not, even though both had

violated the scheduling order, demonstrates that he was held in
12

contempt for what Judge Melançon considered to be criticism or

disrespect.

We find Navratil's last argument to be without merit. 

Failure to follow a court order requiring a party to submit a

document to court is simply not the sort of contemptuous activity

that involves the disrespect or criticism of a judge contemplated

by Rule 42(b). See Goldfine v. United States, 268 F.2d 941 (1st

Cir. 1959) (holding that a district judge was not required to

recuse himself from a contempt hearing based upon a party's

violation of a court order to produce corporate records), cert.

denied, 363 U.S. 482 (1960). Moreover, while we find Judge

Melançon's differential treatment of the attorneys puzzling,

"[w]e cannot assume that judges are so irascible and sensitive

that they cannot fairly and impartially deal with resistance to

their authority or with highly charged arguments about the

soundness of their decisions." Ungar v. Sarafite, 376 U.S. 575,

584 (1964). Therefore, Judge Melançon was not obliged to recuse

himself from presiding over the contempt hearing. 

Because the contempt order was procedurally flawed in that

Navratil was denied (1) his rights to counsel and to call

witnesses, (2) his right to adequate notice of the nature of the

contempt proceeding, and (3) his right to an impartial decision

maker by virtue of Judge Melançon's improper assumption of the

dual role of prosecutor and judge, we must vacate the order.
13

2. Substantive Claims

Because of double jeopardy concerns, we consider Navratil's

substantive attacks on the contempt proceeding. See United

States v. Miller, 952 F.2d 866, 871 (5th Cir.) (noting that a

finding of insufficiency of the evidence is tantamount to an

acquittal, and thus bars reprosecution for the same offense),

cert. denied, 505 U.S. 1220 (1992). Navratil contends that, as a

matter of law, no basis existed upon which the district court

could validly hold him in contempt. 

Navratil argues first that the contempt order was improper

because the scheduling order was ambiguous. 18 U.S.C. § 401(3)

states that a party may be held in contempt of court for

"[d]isobedience or resistance to [the court's] lawful writ,

process, order, rule, decree, or command." A finding of contempt

under this provision requires proof beyond a reasonable doubt

that (1) the order in question is reasonably specific, (2) the

party violated the order, and (3) the party had a willful intent

to violate the order. In re Hipp, Inc., 5 F.3d 109, 112 (5th

Cir. 1993). In the context of criminal contempt, willfulness may

be established by "behavior amounting to a reckless disregard for

the administration of justice . . . ." United States v. Burstyn,

878 F.2d 1322, 1324 (11th Cir. 1989); see United States v. West,

21 F.3d 607, 608 (5th Cir. 1994) (noting that proof of a

"`contemptuous act and a willful, contumacious, or reckless state

of mind'" will support a conviction of criminal contempt). 

 Evidence of each of these three elements exists in this
14

case. First, the instructions accompanying the scheduling order

specifically state that

[t]he Joint Status report shall address all matters outlined

in the attached form Joint Status Report and shall follow 

the same format.

This language lacks any ambiguity. Second, the order was

violated because neither Navratil nor McClindon submitted a joint

status report in compliance with the scheduling order

instructions. Third, during the show-cause hearing, Navratil

admitted that he had not even read the form joint status report

in order to determine whether the previously submitted status

report complied with the form in content and format. This

conduct evidences a reckless state of mind in violating the court

order. Thus, the record indicates that sufficient evidence

exists to support a conviction for criminal contempt.

Navratil also contends that the contempt order was

substantively flawed because the scheduling order that he

violated was itself illegal. Navratil predicates this contention

on two grounds: (1) the scheduling order violated the timing

requirements of the Federal Rules of Civil Procedure, and (2) the

scheduling order was signed by a Western District deputy clerk, a

person without the authority to issue the order. Both of these

points lack merit.

Navratil relies upon Rule 16 of the Federal Rules of Civil

Procedure to support the proposition that the scheduling order,

which ordered the parties' submission of a joint status report,
15

was procedurally improper. Rule 16 provides in pertinent part

that 

the district judge, or a magistrate judge when authorized 

by district court rule, shall, after receiving the 

report from the parties under Rule 26(f) or after

consulting with the attorneys for the parties and any

unrepresented parties by a scheduling conference,

telephone, mail, or other suitable means, enter a

scheduling order . . . . 

FED. R. CIV. P. 16(b). Navratil contends that the scheduling

order in this case, which contained the instructions relating to

the submission of the joint status report, was procedurally

invalid because it preceded the court's receipt of a Rule 26(f)

report or a consultation with the parties.

Navratil and the other attorneys of record in the underlying

cause had engaged in a status conference with the magistrate

judge to whom the case was assigned prior to its transfer to

Judge Melançon. The correspondence between the magistrate and

the attorneys satisfied any requirement of correspondence between

judge and attorneys before the issuance of the scheduling order.

The primary purpose behind Rule 16(b) is "to encourage the

early assertion of judicial control to ensure that the parties

organize their cases and proceed as expeditiously as possible." 

WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1522.1

(West 1990). Given that Rule 16(b)'s overriding purpose is the

facilitation of judicial economy, a requirement that a judge to

whom a case is transferred engage in correspondence with

attorneys that merely repeats correspondence that has already

occurred between the attorneys and the judge to whom the case was
16

initially assigned would undermine the purpose of Rule 16(b). 

Next, Navratil contends that the fact that the scheduling

order was signed by a deputy clerk renders it procedurally

invalid. He points to no authority in support of this

conclusion. Furthermore, the scheduling order was attached to

the "Attention Attorneys" order, which was signed by Judge

Melançon, and which plainly indicated that the scheduling order

was issued at his direction. The actual signature on the

scheduling order is thus entirely irrelevant to the validity of

the order.

Because no substantive defect in the district court's

criminal contempt order provides a basis for reversing the

conviction and rendering judgment for Navratil, we do not

foreclose the possibility of the district court pursuing the

imposition of sanctions against Navratil in a manner consistent

with this opinion.

III. CONCLUSION

Because Navratil lacked adequate notice of the criminal

contempt proceeding and was denied his right to call witnesses

and retain counsel, and because Judge Melançon improperly assumed

the dual role of prosecutor and judge in the contempt proceeding,

we VACATE the order of the district court and REMAND the cause

for further proceedings consistent with this opinion.