Carmena v. International Union of Operating Engineers, Local 406, 77-3005
| Decision Date | 08 May 1978 |
| Docket Number | No. 77-3005,77-3005 |
| Citation | 572 F.2d 1031 |
| Parties | 83 Lab.Cas. P 10,587 Jerry Lee CARMENA, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406 and Barnard and Burk, Inc., Defendants-Appellees. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lawrence R. Anderson, Jr., Baton Rouge, La., for plaintiff-appellant.
William R. D'Armond, Baton Rouge, La., for Barnard & Burk, Inc.
Jerry L. Gardner, Jr., New Orleans, La., for International Union.
Appeal from the United States District Court for the Middle District of Louisiana.
Before BROWN, Chief Judge, COLEMAN and VANCE, Circuit Judges.
Plaintiff Jerry Lee Carmena sued his former employer, Barnard & Burk, Inc., and his union, Local 406, in federal district court, alleging that his discharge by the company violated the collective bargaining agreement, that both the company and the union illegally refused to process his grievance, and that the union thereby breached its duty of fair representation. The parties agreed that the case would be tried by a United States magistrate who, according to the pretrial order, would "render final judgment herein." R. at 57. The magistrate heard the case, found for the defendants, and plaintiff appeals. We dismiss the appeal for want of jurisdiction.
The recent opinion of Kendall v. Davis, 5 Cir., 1978, 569 F.2d 1330, clearly holds that a magistrate's decision rendered in a setting similar to that involved here is not directly appealable to this Court. Under 28 U.S.C. §§ 636(b)(1) and (2), a magistrate may serve "as a special master in any civil case, upon consent of the parties," but his findings and recommendations are to be supervised and reviewed by the district court, which then enters judgment. F.R.Civ.P. 53(e). The magistrate's decision prior to the district court's review is not a "final decision of a district court" within the meaning of 28 U.S.C. § 1291. "Because no final decision of a district court has been rendered in this case and because no other statute authorizes direct appeal of the magistrate's decision under these circumstances, we have no jurisdiction to hear this appeal." 1 Kendall v. Davis, supra, at 1331.
As in Kendall, we therefore dismiss the appeal without prejudice to a future appeal following the district court's review of the magistrate's report and entry of final judgment by the district court.
DISMISSED.
* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
1 Legislation pending in Congress would alter this result. The Magistrate Act of 1977, S. 1613, would amend 28 U.S.C. § 636 by adding the following provision after subsection (b):
To continue reading
Request your trial
-
Whitehead v. Califano
... ... 1972); United Transportation Union v. Illinois Central Railroad Co., 433 F.2d 566 ... 1978); Carmena v. International International Union of Operating International Union of Operating Engineers ... ...
-
Harding v. Kurco, Inc.
... ... was in response to the district court's local Rule 17(a) which states, in part: ... 1978); Carmena v. International Union of Operating Engineers, cal 406, 572 F.2d 1031 (5th Cir. 1978); Taylor v. Oxford, ... ...