     Case: 12-30846   Document: 00512247237    Page: 1   Date Filed: 05/20/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                FILED
                                                               May 20, 2013

                                No. 12-30846                   Lyle W. Cayce
                                                                    Clerk

In Re: In the Matter of the Complaint of Manson Construction Company, as
Owner and Operator of the Hopper Dredges Glenn Edwards and Bayport, for
Exoneration from or Limitation of Liability

Manson Construction Company, as Owner and Operator of the Hopper
Dredges Glenn Edwards and Bayport

             Petitioner

PELICAN ISLAND OYSTERS, INCORPORATED; MITCHELL B.
JURISICH, SR.; MITCHELL B. JURISICH, JR.; FRANK JURISICH;
ALTHEA JURISICH; DANNELL JURISICH; GULF WAVE OYSTERS,
INCORPORATED; GULF STATE OYSTERS, INCORPORATED; LITTLE
MITCH, INCORPORATED; LITTLE FRANK, INCORPORATED; SHELL
ISLAND, INCORPORATED; BAYOU CANARD, INCORPORATED;
GRASSHOPPER OYSTERS, INCORPORATED; PRINCE CHARMING,
INCORPORATED; JURISICH OYSTERS, L.L.C.; G.I. JOE,
INCORPORATED,

             Claimants - Third Party Plaintiffs - Appellants

v.

OFFICE OF COASTAL PROTECTION AND RESTORATION AUTHORITY
STATE OF LOUISIANA,

            Third Party Defendant - Appellee
________________________________________________________________________
_____________________________________________________________

In Re: In the Matter of the Complaint of Great Lakes Dredge & Dock
Company, L.L.C., as owner or owner Pro Hac Vice and operator of the
Dredges Alaska, California, Texas, Terrapin Island, Liberty Island, and
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                                       No. 12-30306

Padre Island, as well as all attendant vessels thereto; CEF 2002, L.L.C., as
owner of the Dredge Liberty Island, for Exoneration from or Limitation of
Liability

               Petitioners

PELICAN ISLAND OYSTERS, INCORPORATED; MITCHELL B.
JURISICH, SR.; MITCHELL B. JURISICH, JR.; FRANK JURISICH;
ALTHEA JURISICH; DANNELL JURISICH; GULF WAVE OYSTERS,
INCORPORATED; GULF STATE OYSTERS, INCORPORATED; LITTLE
MITCH, INCORPORATED; LITTLE FRANK, INCORPORATED; SHELL
ISLANDS, INCORPORATED; BAYOU CANARD, INCORPORATED;
GRASSHOPPER OYSTERS, INCORPORATED; PRINCE CHARMING,
INCORPORATED; JURISICH OYSTERS, L.L.C.; G.I. JOE,
INCORPORATED,

               Claimants - Third Party Plaintiffs - Appellants

v.

OFFICE OF COASTAL PROTECTION AND RESTORATION AUTHORITY
STATE OF LOUISIANA,

                Third Party Defendant - Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:11-cv-03092


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*




       *
         Pursuant to 5TH CIR. R. 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 5TH CIR.
R. 47.5.4.


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                                  No. 12-30306

      A group of commercial oyster harvesters (“the Oystermen”) appeal the
district court’s dismissal of its claims against the State of Louisiana (“State”) on
sovereign immunity grounds. Carried with the case is the State’s motion to
dismiss the appeal for lack of jurisdiction. Concluding that we do not have
jurisdiction, we DISMISS the appeal.
                        FACTS AND PROCEEDINGS
      This case arises from the Barrier Berm Project, which was conducted by
the State, along with several contractors, to contain and remove oil associated
with the Deepwater Horizon oil spill. The Oystermen claim that the State, two
contractors, and various subcontractors were grossly negligent in dredging and
construction during the project and that their negligent actions damaged the
Oystermen’s oyster leases. The Oystermen sued to recover their losses in both
state court and federal district court. The State filed a motion to dismiss in
district court, contending that it had Eleventh Amendment immunity from the
suit. Ruling on the motion, the district court concluded that it lacked subject
matter jurisdiction over the Oystermen’s claims against the State. The district
court determined that the Oystermen sought damages that would be paid out of
the State’s treasury and that the State had not waived its sovereign immunity
from suit. Therefore, the district court dismissed these claims as barred by the
Eleventh Amendment.         The Oystermen’s claims against the remaining
defendants are pending; however, they seek interlocutory review of the district
court’s order dismissing their claims against the State.
                           STANDARD OF REVIEW
      “Interlocutory appeals are generally disfavored, and statutes permitting
them must be strictly construed.” Allen v. Okam Holdings, Inc., 116 F.3d 153,
154 (5th Cir. 1997).
                                 DISCUSSION



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                                   No. 12-30306

      This court has jurisdiction over interlocutory appeals under 28 U.S.C.
§ 1292(a) in certain circumstances.          Here, the Oystermen contend that
§ 1292(a)(3) provides a basis for the court’s jurisdiction. This provision gives
federal courts of appeals jurisdiction over “[i]nterlocutory decrees of such district
courts or the judges thereof determining the rights and liabilities of the parties
to admiralty cases in which appeals from final decrees are allowed.”
§ 1292(a)(3). The State concedes that the underlying cause of action is a case in
admiralty.    It nevertheless argues that the court lacks jurisdiction under
§ 1292(a)(3), because the district court’s order did not “determin[e] the rights and
liabilities of the parties.”
      Because interlocutory appeals are disfavored, this court has “tended to
construe [the language of § 1292(a)(3)] rather narrowly.” Ingram Towing Co. v.
Adnac, Inc. (In re Ingram Towing Co.), 59 F.3d 513, 516 (5th Cir. 1995). “As a
general rule, we have permitted appeals under § 1292(a)(3) whenever an order
in an admiralty case dismisses a claim for relief on the merits.” MS Tabea
Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of Comm’rs, 636 F.3d 161, 165 (5th
Cir. 2011). But “[o]rders which do not determine parties’ substantive rights or
liabilities . . . are not appealable under section 1292(a)(3), even if those orders
have important procedural consequences.” Francis ex rel. Francis v. Forest Oil
Corp., 798 F.2d 147, 150 (5th Cir. 1986). Thus, this court has held that it lacked
jurisdiction over appeals from orders granting a preliminary injunction,
dismissing some, but not all, defendants for lack of personal jurisdiction or
admiralty jurisdiction, and dismissing a counterclaim. See Allen, 116 F.3d at
154 (collecting cases).
      The district court’s jurisdictional rulings can determine the merits of a
claim “[i]n the special case where the challenged basis of jurisdiction is also an
element of plaintiff’s federal cause of action.” Lewis v. Knutson, 699 F.2d 230,
237 (5th Cir. 1983). “[I]f the jurisdictional challenge does not implicate the

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                                       No. 12-30306

merits of the cause of action,” however, it does not determine the parties
substantive rights or liabilities and is not appealable under § 1292(a)(3). Id.
       The district court’s determination that the State is immune from suit was
purely a jurisdictional ruling. It did not reach the merits of the Oystermen’s
claim: whether the State owed a duty to the Oystermen, whether it breached
that duty, and whether that breach caused the Oystermen to be injured. Rather,
it concluded only that the Oystermen sought damages from the state treasury
and that the State had not waived its sovereign immunity. Therefore, the
district court’s order did not determine the parties’ substantive rights or
liabilities, even though it has important procedural consequences.1 We do not
have jurisdiction over the Oystermen’s interlocutory appeal of this order.


                                     CONCLUSION
       Because the district court’s order is not appealable under 28 U.S.C.
§ 1292(a)(3), we DISMISS this appeal for lack of jurisdiction.




       1
        When a jurisdictional ruling forecloses the only forum in which a claim can be brought
against a party, it may be determinative of the parties’ substantive rights or liabilities. See
MS Tabea, 636 F.3d at 165. This is not the case here.

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