      Case: 18-20781   Document: 00515140962        Page: 1   Date Filed: 10/01/2019




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

                                     No. 18-20781                           FILED
                                                                      October 1, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee
v.

THE M/Y GALACTICA STAR , BEING A 65-METER MOTOR YAUGHT
BUILT BY HEESEN SHIPYARDS WITH INTERNATIONAL MARITIME
ORGANIZATION NUMBER 9679830, AND REGISTERED UNDER THE
LAWS AND FLAG OF THE CAYMAN ISLANDS AT; ANY AND ALL
FUNDS, PROCEEDS, CASH, OR BENEFITS TO BE DISBURSED OR
OTHERWISE OWING TO ONE57 79 INC., OR TO ITS SUCCESSORS OR
ASSIGNS, OUT OF ANY SURPLUS FUNDS RESULTING FROM THE
FORECLOSURE ACTION, TO; REAL PROPERTY LOCATED IN NEW
YORK, N.Y., COMMONLY KNOWN AS 1049 FIFTH AVENUE, UNITS 11B
AND 12B, NEW YORK, N.Y. 10032, AND ALL APPURTENANCES,
IMPROVEMENTS, AND ATTACHMENTS LOCATED THEREON, AND
ANY PRO; REAL PROPERTY LOCATED IN MONTECITO, CALIF.,
COMMONLY KNOWN AS 807 CIMA DEL MUNDO ROAD, MONTECITO,
CALIF. 90077, AND ALL APPURTENANCES, IMPROVEMENTS, AND
ATTACHMENTS LOCATED THEREON, AND ANY PROPERTY T; REAL
PROPERTY LOCATED IN MONTECITO, CALIF., COMMONLY KNOWN
AS 815 CIMA DEL MUNDO ROAD, MONTECITO, CALIF. 90077, AND ALL
APPURTENANCES, IMPROVEMENTS, AND ATTACHMENTS LOCATED
THEREON, AND ANY PROPERTY T; ALL RIGHTS AND INTERESTS
HELD BY RIVERMOUNT INTERNATIONAL LTD., OR ITS AFFILIATES
OR ASSIGNEES, IN THE SUBORDINATED CONVERTIBLE
PROMISSORY NOTE EXECUTED BETWEEN CROSS HOLDINGS, INC.,
AND RIVERMOUNT IN,

              Defendants
and

LIGHTRAY CAPITAL, L.L.C.,

             Claimant - Appellant
     Case: 18-20781       Document: 00515140962         Page: 2     Date Filed: 10/01/2019



                                       No. 18-20781



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2166


Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
PER CURIAM: ∗
       For this civil-forfeiture action, primarily at issue in this appeal is
whether the district court judgment was issued pursuant to Federal Rule of
Civil Procedure 54(b) (allowing appeal from a final judgment entered for “fewer
than all” claims or parties in an action). In district court, the Government
challenged LightRay Capital, L.L.C.’s—a corporate shareholder— standing to
contest civil forfeiture.      Concluding it was lacking, the court granted the
Government’s motion to strike and entered a “Final Judgment”. Because no
basis for appellate jurisdiction exists, LightRay’s appeal is DISMISSED.
                                              I.
       From April 2010 until May 2015, Diezani Alison-Madueke served as
Nigeria’s Minister for Petroleum Resources. In that role, she oversaw Nigeria’s
state-owned oil company. The Government alleges that, while she was in
office, various individuals engaged in an international conspiracy to obtain
business opportunities from her in exchange for gifts and benefits.                      The
Government further contends the scheme involved money laundering taking
place in, and through, the United States. For purposes of this appeal, the
relevant timeline spans from July 2017 through December 2018, after Alison-
Madueke left office.



       ∗
        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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      On 14 July 2017, the Government filed an in rem complaint, pursuant to
18 U.S.C. §§ 981(a)(1)(A) and 981(a)(1)(C), seeking civil forfeiture of assets
derived from the alleged conspiracy. These assets include, inter alia: (1) the
M/Y GALACTICA STAR (a 65-meter motor yacht); (2) surplus funds from the
foreclosure auction of real property located at 157 West 57th Street, Unit 79,
New York, NY; (3) Units 11B and 12B of 1049 Fifth Avenue, New York, NY;
(4) real property located at both 807 and 815 Cima del Mundo Road, Montecito,
CA; and (5) all rights held by Rivermount International Ltd., or its affiliates or
assignees, in a note executed between Cross Holdings, Inc., and Rivermount.
      On 6 July 2017, shortly before the Government filed its complaint,
LightRay was formed as a Florida L.L.C. Four days later, LightRay acquired
100 percent of the stock in Earnshaw, a holding company that owned, either
directly or through subsidiaries, all or portions of the assets at issue. Also in
July 2017, both LightRay and Earnshaw filed for bankruptcy. Both
bankruptcies were later dismissed.
      Seeking to contest the Government’s asset-forfeiture action, LightRay
filed a verified claim and statement of interest on 29 December 2017.
Subsequently, the Government sought a protective order, requiring LightRay
to maintain the M/Y GALACTICA STAR and bring it into United States’
territorial waters. The Government avoided acknowledging LightRay as the
yacht’s owner, stating it was uncertain Earnshaw’s transfer to LightRay was
“proper and valid” and addressing LightRay as “the purported corporate parent
to and sole director of the [yacht’s] owner”.
      In February 2018, LightRay assigned its interests in Unit 79 to Margaret
Song, “[i]n consideration of ten dollars ($10.00) and other good and valuable
consideration”. To avoid “protracted litigation” concerning the yacht, LightRay
stipulated to the withdrawal of its claim to the M/Y GALACTICA, with

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prejudice, on 9 May 2018; it also agreed, along with Earnshaw, not to oppose
the yacht’s civil forfeiture.
      On 1 June 2018, the Government moved to strike LightRay from the
action, pursuant to Supplemental Rule for Admiralty or Maritime Claims and
Asset Forfeiture Actions G(8)(c), claiming LightRay lacked Article III standing.
The district court orally granted the Government’s motion to strike at a
hearing on 24 October 2018, and signed an order labeled “Final Judgment” on
19 November 2018; it was not entered until 28 November.
      LightRay, however, filed its first notice of appeal on 23 November 2018
from the 24 October oral order, asserting appellate jurisdiction over this appeal
was proper pursuant to the collateral-order doctrine and 28 U.S.C.
§ 1292(a)(3), which allows for interlocutory appeals in certain admiralty cases.
But, also on that date, LightRay filed a motion for certification of final
judgment pursuant to Rule 54(b).
      In its motion, LightRay “maintain[ed] that appellate jurisdiction exists
here under both 28 U.S.C. § 1292(a)(3) and the collateral order doctrine” but
made its certification request “in an abundance of caution”. LightRay also filed
a proposed order granting the motion.
      On 3 December 2018, LightRay filed an amended notice of appeal from
the 19 November “Final Judgment”, entered on 28 November. In the amended
notice of appeal, LightRay stated erroneously that the district court’s 19
November judgment was entered on the Government’s motion to strike “and
LightRay’s Motion for Certification of Final Judgment under Rule 54(b) of the
Federal Rules of Civil Procedure”. LightRay asserted, in its amended notice,
that appellate jurisdiction was proper as an “[a]ppeal as of [r]ight from Final
Judgment under Rule 4 of the Federal Rules of Appellate Procedure”, as well
as pursuant to 28 U.S.C. § 1292(a)(3).

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                                      II.
      The primary issue on appeal is whether our court has appellate
jurisdiction. In its 23 November 2018 notice of appeal from the 24 October oral
order, LightRay provided 28 U.S.C. § 1292(a)(3) and the collateral-order
doctrine as the bases for such jurisdiction. In its amended notice of appeal,
however, LightRay stated the district court entered final judgment pursuant
to Rule 54(b), going on to claim jurisdiction under Rule 4 of the Federal Rules
of Appellate Procedure and 28 U.S.C. § 1292(a)(3). Moreover, in its briefing,
LightRay nowhere mentioned Rule 54(b). It asserted, rather, jurisdiction was
proper pursuant to 28 U.S.C. § 1291, as an appeal from a final judgment, and
pursuant to 28 U.S.C. § 1292(a)(3). Although absent from its amended notice
of appeal and its briefing, after our court questioned at oral argument whether
appellate jurisdiction was proper, LightRay again asserted the collateral-order
doctrine provided jurisdiction on appeal.
      Surprisingly, the Government’s brief agreed jurisdiction was proper,
pursuant to 28 U.S.C. § 1291, as an appeal from a Rule 54(b) final judgment.
At oral argument, after we questioned the finality of the district court’s
judgment, however, the Government, for the first time, admitted it “had not
noticed the potential jurisdictional defect”, stated “[the court] makes a good
point with regard to Rule 54(b) that there actually may not be jurisdiction
here”, and that “[it] takes that point seriously”. When questioned further about
jurisdiction, the only points made by the Government were those prefaced by
the phrases “as you pointed out” and “as you also point out”. The Government
did dispute at oral argument, however, that this case fell within the court’s
admiralty jurisdiction.
      It goes without saying that “[o]ur court is one of limited jurisdiction”.
Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536,

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538 (5th Cir. 1999). As such, “[w]e have authority to hear appeals only from
‘final decisions’ under 28 U.S.C. § 1291, interlocutory decisions under 28 U.S.C.
§ 1292, nonfinal judgments certified as final under . . . [Rule] 54(b), or some
other nonfinal order or judgment to which an exception applies”. Id. (citations
omitted).
      “[E]very federal appellate court has a special obligation to satisfy itself
. . . of its own jurisdiction . . . even though the parties are prepared to concede
it”. Escobar v. Montee, 895 F.3d 387, 391 n.1 (5th Cir. 2018) (alteration in
original) (internal quotation marks and citation omitted).              Moreover,
“appellant . . . bears the burden of establishing this court’s appellate
jurisdiction over its appeal”. Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287,
289 (5th Cir. 2000) (citation omitted); see Fed. R. App. P. 28(a)(4)(B), (D).
Despite the parties’ assertions, in their briefs, that jurisdiction was proper,
“federal courts must address jurisdictional questions whenever they are raised
and must consider jurisdiction sua sponte if not raised by the parties”. Howery
v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (citation omitted).
                                        A.
      “A decision is final when it ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Askanase v. Livingwell,
Inc., 981 F.2d 807, 810 (5th Cir. 1993) (internal quotation marks and citation
omitted).   “When an action involves multiple parties, any decision that
adjudicates the liability of fewer than all of the parties does not terminate the
action and is therefore not appealable unless certified by the district judge
under Rule 54(b).” Id. (citation omitted).
      Because the judgment dismissed fewer-than-all of the parties to this
action, whether judgment was entered pursuant to Rule 54(b) is crucial to
establishing jurisdiction for this appeal on that basis. Rule 54(b) states:

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                                 No. 18-20781

      When an action presents more than one claim for relief—whether
      as a claim, counterclaim, crossclaim, or third-party claim—or
      when multiple parties are involved, the court may direct entry of
      a final judgment as to one or more, but fewer than all, claims or
      parties only if the court expressly determines that there is no just
      reason for delay. Otherwise, any order or other decision, however
      designated, that adjudicates fewer than all the claims or the
      rights and liabilities of fewer than all the parties does not end
      the action as to any of the claims or parties and may be revised
      at any time before the entry of a judgment adjudicating all the
      claims and all the parties’ rights and liabilities.

Fed. R. Civ. P. 54(b) (emphasis added). District-court judgments frequently
cite Rule 54(b) or mirror its language when they intend immediate
appealability. The “Final Judgment” at issue did neither.
      Referencing Rule 54(b) or reciting its language is not, however, necessary
before a judgment as to fewer-than-all claims or parties may be immediately
appealed.
      If the language in the order appealed from, either independently
      or together with related portions of the record referred to in the
      order, reflects the district court’s unmistakable intent to enter a
      partial final judgment under Rule 54(b), nothing else is required
      to make the order appealable. We do not require the judge to
      mechanically recite the words “no just reason for delay.”

Kelly v. Lee’s Old Fashioned Hamburgers, Inc. (Lee’s Old Fashioned
Hamburgers of New Orleans, Inc.), 908 F.2d 1218, 1220 (5th Cir. 1990) (en
banc) (per curiam).
      Elaborating on Kelly, our court held in Briargrove: “The intent must be
unmistakable; the intent must appear from the order or from documents
referenced in the order; we can look nowhere else to find such intent, nor can
we speculate on the thought process of the district judge.” Briargrove, 170 F.3d
at 539 (emphasis in original). Of particular importance to whether we have
jurisdiction in this appeal, our court in Briargrove further held: “The fact that
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the district court labeled its order as a ‘Final Judgment’ does not suffice to
make that order appealable under Rule 54(b)”. Id. at 540.
      On 1 June 2018, the Government filed its motion to strike LightRay as a
claimant. In doing so, the Government “request[ed] that Lightray’s claim be
stricken and Lightray be dismissed from this case”. LightRay objected, and
the Government replied, again requesting “LightRay’s claim be stricken,
LightRay be dismissed from this case, and LightRay’s motion to amend be
denied”.
      At a 24 October hearing on the matter, the district court ruled: “[T]he
motion to strike is granted”.   Regarding that ruling, it signed the “Final
Judgment” on 19 November 2018, entered on 28 November, which provided in
its entirety:   “Pending before the Court is the United States’ Motion for
Judgment on the Pleadings to Strike Putative Claimant LightRay Capital,
LLC (“Motion”) (Doc. No. 128). The Court hereby GRANTS the Motion.”
      On 23 November 2018, LightRay filed a notice of appeal; but it was from
the 24 October oral ruling, not the “Final Judgment” signed on 19 November.
Also on 23 November, LightRay filed a motion requesting the court enter final
judgment as to LightRay under Rule 54(b). A proposed order granting the
motion was filed on the same day. No action was taken on this motion.
      On 3 December 2018, LightRay filed an amended notice of appeal—
erroneously stating the appeal was based on the district court’s final judgment
“entered on November 19, 2018, on the United States’ Motion for Judgment on
the Pleadings to Strike Putative Claimant LightRay (Doc. No. 128) and
LightRay’s Motion for Certification of Final Judgment under Rule 54(b) of the
Federal Rules of Civil Procedure (Doc. No. 152)”. First, the judgment was not
entered until 28 November.      Second, while LightRay contends the final
judgment was based partially on its motion for certification, this is obviously

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                                  No. 18-20781

impossible: LightRay had yet to file its motion prior to the district court’s
signing the “Final Judgment” on 19 November.
      Despite LightRay’s grossly misleading amended notice of appeal, the
factual impossibility of a previously-signed judgment being predicated on an
as-yet-unmade motion demands the conclusion that the district court did not
base its judgment on LightRay’s motion and proposed order, which would have
evidenced an intent to certify the judgment as final pursuant to Rule 54(b).
The record is clear that the opposite inference should be drawn from the
district court’s inaction on LightRay’s motion for certification.
      Although a “Final Judgment” was signed and entered in district court, it
did not reference Rule 54(b), did not include any language taken from the rule,
and did not express the sentiments contained within the rule.           The only
document referenced in the judgment was the Government’s motion to strike,
which did not mention Rule 54(b), the language of the rule, partial finality, or
immediate appealability.
      As noted, labeling an order “Final Judgment”, without more, is not
enough to render a judgment appealable under Rule 54(b). Briargrove, 170
F.3d at 540.   Needless to say, despite the Government’s concession in its
briefing regarding jurisdiction under Rule 54(b), our court cannot act where
jurisdiction is, in fact, lacking. Because the “Final Judgment”, and the only
document it referenced (the Government’s motion to strike LightRay), are
completely devoid of any indication the district court intended final judgment
pursuant to Rule 54(b), the rule is inapplicable in this instance and, therefore,
does not provide jurisdiction for our court.
                                       B.
      In its two notices of appeal and its brief, LightRay contends this court
has jurisdiction pursuant to 28 U.S.C. § 1292(a)(3), which states, in relevant

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                                   No. 18-20781

part:    “the courts of appeals shall have jurisdiction of appeals from . . .
[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”. Although LightRay relinquished any claim to the
M/Y GALACTICA STAR in its stipulation with the Government, prior to being
stricken from this action, the statutory provision would not provide our court
with jurisdiction over this appeal even if LightRay’s claim to the yacht were
live.
        Exclusive jurisdiction is provided by 28 U.S.C. § 1333(1) to federal courts
over “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in
all cases all other remedies to which they are otherwise entitled”. Pursuant to
Federal Rule of Civil Procedure 9(h)(1), “[i]f a claim for relief is within the
admiralty or maritime jurisdiction and also within the court’s subject-matter
jurisdiction on some other ground, the pleading may designate the claim as an
admiralty or maritime claim” (emphasis added). Along that line, “[t]o invoke
the admiralty jurisdiction, a plaintiff must insert a statement in [its] pleading
identifying the claim ‘as an admiralty or maritime claim . . . .’ Rule 9(h).
Otherwise, . . . the special practice features for admiralty claims are not
applicable”. Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir. 1989) (citation
omitted).
        As our court has noted, “[n]umerous and important consequences flow
from whether a district court treats a case as falling under admiralty . . .
jurisdiction”. T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc.,
702 F.2d 585, 586 (5th Cir. 1983) (per curiam). Among these consequences are
the applicability of special venue rules, “certain maritime remedies, such as
maritime attachment and garnishment, actions in rem”, and, as relevant to


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this discussion, the availability of interlocutory appeals, pursuant to 28 U.S.C.
§ 1292(a)(3). Id. at 587 (citation omitted).
      Where dual bases of federal jurisdiction exist, “[t]he plaintiff may elect
to have a suit treated as either a diversity or admiralty suit, each option having
advantages and disadvantages”. Id. Similarly, where jurisdiction is proper
under 28 U.S.C. § 1333 or some other statute, the Government, as plaintiff,
may, in its discretion, elect how to proceed. See Fed. R. Civ. P. 9(h)(1).
      Because the Government sought forfeiture of the M/Y GALACTICA, it
had the option to proceed in admiralty, at least with regard to the yacht,
pursuant to 28 U.S.C. § 1333. Instead, the Government chose to file suit
pursuant to 18 U.S.C. §§ 981 (civil forfeiture) and 983 (general rules for civil
forfeiture), asserting federal jurisdiction pursuant to 28 U.S.C. §§ 1345 (United
States as plaintiff) and 1355(a) (fine, penalty, or forfeiture).
      At no point in its complaint did the Government assert jurisdiction based
on admiralty. Simply put, this case is not, and never was, an admiralty action.
Accordingly, jurisdiction over this interlocutory appeal pursuant to 28 U.S.C.
§ 1292(a)(3) is lacking.
                                        C.
      Again, although we must be satisfied with jurisdiction, including
reaching the issue sua sponte, if necessary, on appeal, the appellant has the
burden of establishing it. See Escobar, 895 F.3d at 391 n.1 (internal quotation
marks and citation omitted); Acoustic Sys., Inc., 207 F.3d at 289 (citation
omitted). In its 23 November 2018 notice of appeal, LightRay presented the
collateral-order doctrine as the second basis for jurisdiction. In its 3 December
2018 amended notice of appeal, however, LightRay does not rely on it as a basis
for jurisdiction.    Nor did LightRay present it as a basis in its required


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statement of jurisdiction in its opening brief on appeal. See Fed. R. App. P.
28(a)(4)(B), (D).
      As is well known, the collateral-order doctrine applies to “that small
class [of decisions] which finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied review
and too independent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated”. Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). The Supreme Court later reiterated the
doctrine applies only to the “small category of decisions that, although they do
not end the litigation, must nonetheless be considered ‘final.’ That small
category includes only decisions that are conclusive, that resolve important
questions separate from the merits, and that are effectively unreviewable on
appeal from the final judgment in the underlying action”. Swint v. Chambers
Cty. Comm’n, 514 U.S. 35, 42 (1995) (citations omitted).
                                       1.
      In addition to not asserting the collateral-order doctrine as a basis for
jurisdiction in its amended notice of appeal or its briefing, when asked about
the doctrine at oral argument, LightRay developed no position on it.
Specifically, when the court asked whether LightRay would concede it would
be able to assert its position on appeal from a full final judgment after all
claims are decided, LightRay stated it was not conceding that; rather, it was
just “stating all the bases”.   LightRay then abandoned discussion of the
doctrine and began addressing the Government’s contentions. Accordingly, we
need not address the collateral-order doctrine as a jurisdictional basis for this
appeal.




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                                           2.
      As noted, LightRay does not mention that doctrine in its amended notice
of appeal (after having relied on it in part in its original notice of appeal) or its
brief. Assuming arguendo LightRay, on rebuttal at oral argument, advanced
the doctrine as a basis for jurisdiction, issues raised for the first time at oral
argument are generally waived. E.g., United States v. Bigelow, 462 F.3d 378,
383 (5th Cir. 2006) (citation omitted). Nevertheless, this possible basis for
jurisdiction is considered as part of our sua sponte analysis, determining
jurisdiction vel non.   The collateral-order doctrine does not provide a basis for
appellate jurisdiction in this instance.
      While the collateral-order doctrine will necessarily allow some appeals,
otherwise impermissible under 28 U.S.C. § 1291, the doctrine is a “narrow
exception”, Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994) (internal quotation marks and citation omitted), “selective in its
membership”. Will v. Hallock, 546 U.S. 345, 350 (2006). In deciding whether
the application of the doctrine is warranted, “[t]hat a ruling may burden
litigants in ways that are only imperfectly reparable by appellate reversal of a
final district court judgment . . . has never sufficed”. Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009) (internal quotation marks and citation
omitted).
      In its briefing, and at oral argument, LightRay contended its ability to
assert the innocent-owner defense would be lost, should our court fail to restore
LightRay to the case. Construing LightRay’s position generously, it could be
understood to assert the loss of this defense satisfies the elements required for
the collateral-order doctrine to provide appellate jurisdiction now, rather than
after a final judgment is entered when no claims by any party remain to be
decided.

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      On appeal from such a final judgment, while LightRay may not be able
to assert this defense in order to recover the property itself, LightRay may still
assert an innocent-owner defense. If it is successful on such an appeal, the
district court, on remand, may then decide the claim. This remedy brings
LightRay’s claims within the category of those claims “imperfectly reparable”
by appellate review rather than irreparable entirely.         Because requiring
finality before allowing LightRay’s appeal would not “imperil a substantial
public interest” or “some particular value of a high order”, Will, 546 U.S. at
352–53, and because this appeal implicates none of the relevant Cohen
considerations, our court lacks jurisdiction pursuant to the collateral-order
doctrine.
                                       III.
      For the foregoing reasons, this appeal is DISMISSED for lack of
jurisdiction.




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