IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30847

BORDELON MARINE, L.L.C., 

 Plaintiff - Appellant

v.

BIBBY SUBSEA ROV, L.L.C., 

 Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:16-CV-1106

Before WIENER, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Bordelon Marine, L.L.C. (“Bordelon”) appeals a 

district court order compelling arbitration over a dispute with DefendantAppellee Bibby Subsea ROV, L.L.C. (“Bibby”). Specifically, Bordelon appeals 

the district court’s conclusion as to the selection of arbitrators; Bordelon does 

not challenge the district court’s conclusion that the dispute must be resolved 

by arbitration. Because we lack appellate jurisdiction, we DISMISS.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2017

Lyle W. Cayce

Clerk

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I.

Bordelon originally sued Bibby in Louisiana state court in an action for

damages and for writ of attachment arising out of a disagreement over the 

chartering of an offshore vessel. Bibby removed the state court action to 

federal court and moved the district court to stay the litigation pending 

arbitration based on arbitration clauses in the contracts between the parties. 

However, a dispute arose among the parties regarding the selection of 

arbitrators. Bordelon filed a “Motion to Re-Open Case to Enforce the Method 

of Appointment of Arbitrators,” contending that Bibby violated the arbitration 

clauses by appointing a certain arbitrator. Bibby opposed this motion and 

concurrently filed a “Cross-Motion to Confirm Arbitrability of Matter,” 

requesting an order both confirming the arbitrability of Bordelon’s claims and 

compelling Bordelon to arbitrate before its selected arbitrators. The court 

granted Bibby’s motion and denied Bordelon’s. Bordelon appealed. We ordered 

supplemental briefing regarding the district court’s subject matter jurisdiction, 

a question we do not reach given our disposition of the appellate jurisdictional 

issue. 

II.

“Before we address the district court’s subject matter jurisdiction we 

must first determine our own.” MS Tabea Schiffahrtsgesellschaft MBH & Co. 

KG v. Bd. of Comm’rs of Port of New Orleans, 636 F.3d 161, 164 (5th Cir. 2011). 

It is the party seeking to assert appellate jurisdiction that is burdened with 

showing it—here, Bordelon. See Martin v. Halliburton, 618 F.3d 476, 481 (5th 

Cir. 2010).

Unfortunately, “[t]he history of appeals from orders with respect to 

arbitration is tangled.” 15B CHARLES ALAN WRIGHT, ET AL., FEDERAL 

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PRACTICE & PROCEDURE § 3914.17 (2d ed. 1992). Since 1988, “[s]ection 16 of 

the Federal Arbitration Act . . . governs appellate review of arbitration orders.” 

Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 84 (2000). “[S]ection 16 

reinforces the congressional policy in favor of arbitration by making antiarbitration decisions widely appealable even when interlocutory, but making 

pro-arbitration decisions generally not appealable unless final.” May v. Higbee 

Co., 372 F.3d 757, 761 (5th Cir. 2004). This difference is intentional, reflecting 

Congress’s desire to avoid lengthy appeals that would delay the arbitration 

process. Al Rushaid v. Nat’l Oilwell Varco, Inc., 814 F.3d 300, 303 (5th Cir. 

2016). Congress also wanted “to ensure that ‘private agreements to arbitrate 

are enforced according to their terms.’” Rainier DSC 1, L.L.C. v. Rainier 

Capital Mgmt., L.P., 546 F. App’x 491, 495 (5th Cir. 2013)1 (quoting Stolt–

Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 664 (2010)). 

 Under section 16, an appeal may be taken from orders denying 

applications for arbitration or enjoining an arbitration or, under section 

16(a)(3), final decisions “with respect to an arbitration that is subject to this 

title.” By contrast, appeals may not be taken from interlocutory orders 

compelling arbitration, granting stays pending arbitration, or refusing to 

enjoin arbitration proceedings. 9 U.S.C. § 16(b).

III.

A.

Bordelon first contends that appellate jurisdiction exists under section

16(a)(3). Specifically, Bordelon asserts that the district court order appealed 

from should be considered a final decision under section 16(a)(3) because the 

 

1 Although Rainier is not “controlling precedent,” it “may be [cited as] persuasive 

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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order left nothing more for the district court to do other than confirm an 

arbitration decision.

Federal courts of appeals typically have appellate jurisdiction “of appeals 

from all final decisions of the district courts of the United States.” 28 U.S.C. 

§ 1291. Similarly, in the context of a dispute involving an arbitration 

agreement, 9 U.S.C. § 16(a)(3) “preserves immediate appeal of any ‘final 

decision with respect to an arbitration.’” Green Tree, 531 U.S. at 86 (quoting 9 

U.S.C. § 16(a)(3)). In turn, the Supreme Court has decided that finality should 

be determined in arbitration cases as it is in other cases: “a decision that ‘ends 

the litigation on the merits and leaves nothing more for the court to do but 

execute the judgment.’” Id. (quoting Dig. Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 867 (1994)). 

In Green Tree, the Supreme Court evaluated whether it could review an 

appeal of a district court order directing that an arbitration proceed and 

dismissing the claims for relief. Id. at 85. The Court held that review was

proper under section 16(a)(3) because the “order plainly disposed of the entire 

case on the merits and left no part of it pending before the court.” Id. at 86. 

We have held that a district court order staying the litigation pending 

the outcome of an arbitration but without a corresponding dismissal “by 

definition, constitutes a postponement of proceedings, not a termination, and 

thus lacks finality.” S. La. Cement, Inc. v. Van Aalst Bulk Handling, B.V., 383 

F.3d 297, 301 (5th Cir. 2004) (citing Apache Bohai Corp., LDC v. Texaco China, 

B.V., 330 F.3d 307, 309 (5th Cir. 2003)). In other words, a stay without a 

dismissal is not sufficiently final. See id. at 301–02; Sw. Elec. Power Co. v. 

Certain Underwriters at Lloyds of London, 772 F.3d 384, 387 (5th Cir. 2014)

(“[O]ur case law has developed a clear distinction between final orders 

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dismissing cases after compelling arbitration and interlocutory orders staying 

and administratively closing cases pending arbitration.”); cf. Gulf Guar. Life 

Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476, 482–83 (5th Cir. 2002) 

(finding that appellate jurisdiction existed because, among other reasons, the 

district court explicitly stated that the order appealed from was a final decision 

for purposes of appeal).

Here, the district court “ordered that Bibby’s motion is granted, that the 

claims raised in Bordelon’s state-court petition are subject to arbitration, and 

that arbitration is compelled.” The order does not mention whether the case is 

stayed. Furthermore, the district court never explicitly dismissed Bordelon’s 

initially removed state court claims. Finally, since Bordelon appealed, the 

district court has reopened the case and the litigation before the court has 

continued. We conclude that the district court never entered a final judgment 

or dismissed Bordelon’s state law claims and, therefore, this court lacks

appellate jurisdiction under section 16(a)(3).

B.

Bordelon also argues that appellate jurisdiction exists under section 

16(a)(1)(B), permitting appeals from orders “denying a petition under section 

4 of this title to order arbitration to proceed.” In doing so, Bordelon 

characterizes its “Motion to Re-Open Case to Enforce the Method of 

Appointment of Arbitrators” as a petition directing arbitration to proceed 

under 9 U.S.C. § 4.

The FAA outlines what types of questions federal courts may resolve 

between parties to an arbitration. See, e.g., 9 U.S.C. §§ 3–6. Relevant here, 

section 4 allows for a party to petition a district court for an order directing 

arbitration to proceed in the manner provided for in the arbitration 

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agreement,2 whereas section 5 allows for a district court to intervene in the 

selection of an arbitrator.3 These statutes are closely intertwined with the 

FAA’s appellate jurisdiction statute. Notably, section 16(a)(1)(B) allows for an 

appeal of an interlocutory order denying a petition under section 4; however, 

there is no corresponding right to an interlocutory appeal of an order denying 

a motion to intervene in the selection of an arbitrator under section 5. See 9 

U.S.C. § 16. Therefore, in order to determine whether appellate jurisdiction 

exists under section 16(a)(1)(B), we must decide whether Bordelon’s “Motion to 

Re-Open Case to Enforce the Method of Appointment of Arbitrators” was a

petition directing arbitration to proceed under section 4 or a motion under 

section 5 to intervene in the selection of an arbitrator. 

Bordelon’s briefing to the district court does not clearly demonstrate that 

it moved under section 4 to direct arbitration to proceed. Although not 

dispositive, the title of the motion itself suggests that Bordelon was challenging 

Bibby’s selection of arbitrators. In the body of the motion, Bordelon asserted 

that section 4 allowed Bordelon to contest Bibby’s failure to arbitrate as 

provided in the agreement; however, in conclusion, it also referenced section 5. 

Furthermore, in Bordelon’s reply, it explicitly argued that the district court 

could settle the dispute about the selection of arbitrators under section 5.

 

2 Section 4 allows for “[a] party aggrieved by the alleged . . . refusal of another to 

arbitrate under a written agreement for arbitration may petition any United States district 

court . . . for an order directing that such arbitration proceed in the manner provided for in 

such agreement.” 9 U.S.C. § 4.

3 This court has stated that section 5 “authorizes a court to intervene ‘to select an 

arbitrator . . .’ in three instances: (1) if the arbitration agreement does not provide a method 

for selecting arbitrators; (2) if the arbitration agreement provides a method for selecting 

arbitrators but any party to the agreement has failed to follow that method; or (3) if there is 

‘a lapse in the naming of an arbitrator or arbitrators.’” BP Expl. Libya Ltd. v. ExxonMobil 

Libya Ltd., 689 F.3d 481, 490–91 (5th Cir. 2012) (quoting Conn. Gen., 304 F.3d at 486, 490)).

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The district court resolved the dispute under section 5. The court spent

three pages explaining our precedent drawing the boundaries of a district

court’s power under section 5.4 Furthermore, “jurisdiction over an appeal 

‘must be determined by focusing upon the category of order appealed from, 

rather than upon the strength of the grounds for reversing the order.’” In re 

Deepwater Horizon, 579 F App’x 256, 258 (5th Cir. 2014) (per curiam) (quoting 

Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 628 (2009)). Therefore, we

reject Bordelon’s attempt to re-characterize the district court’s section 5 order 

appointing arbitrators as an order denying Bordelon’s motion under section 4. 

Indeed, the district court unquestionably did not deny arbitration; it ordered 

arbitration in this case. Bordelon’s argument is not based on a failure of the 

district court to order arbitration but on a failure, in Bordelon’s view, to select 

arbitrators in a way Bordelon views as correct—a section 5 issue. Section 

16(a)(1)(B) does not provide for an appeal of an interlocutory order granting or 

denying a motion under section 5. Because the order that Bordelon appeals is 

not a “den[ial of] a petition under section 4,” appellate jurisdiction does not 

exist under section 16(a)(1)(B).

C.

At oral argument, Bordelon argued for the first time that “if maritime 

jurisdiction applies, then . . . there is appellate jurisdiction over the appeal.”

We do not usually allow parties to raise a new argument for the first time at 

oral argument. Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th 

 

4 In one instance the district court cites section 4; however, it is clear from the analysis 

that the district court meant to conclude that it could intervene pursuant to section 5. 

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Cir. 1998); see also In re Deepwater Horizon, 845 F.3d 634, 641 n.5 (5th Cir. 

2017). Therefore, we consider this argument forfeited.5

Furthermore, nothing in 28 U.S.C. §§ 1291 or 1292 permits an appeal, 

and there was no certification by the district court under either section 1292 

or Federal Rule of Civil Procedure 54(b). Therefore we dismiss the appeal for 

lack of appellate jurisdiction.6

DISMISSED.

 

5 Of course, an argument that this court lacks jurisdiction cannot be waived, but here 

the argument is that the court has jurisdiction, a matter the appellant is required to prove. 

Martin, 618 F.3d at 481. However, even if we were to evaluate Bordelon’s late-made 

assertion, appellate jurisdiction would not exist. Bordelon did not point to statutory support 

for its statement, but it appears to have been referring to 28 U.S.C. § 1292(a)(3). Section

1292(a)(3) provides that appeals may be taken from “[i]nterlocutory decrees of . . . 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.” We have determined that this section 

refers to admiralty cases that dismiss “a claim for relief on the merits.” MS Tabea 

Schiffahrtsgesellschaft, 636 F.3d at 165 (emphasis added). The order appealed from must 

“determine the rights or liabilities of either party to this dispute.” In re Patton–Tully Transp. 

Co., 715 F.2d 219, 222 (5th Cir. 1983) (per curiam).

Here, the district court compelled arbitration after making a determination regarding 

the appointment of arbitrators. This was not a determination of the rights and liabilities of 

the parties; rather, it merely settled “how and where the rights and liabilities would be 

determined,” i.e., at arbitration rather than in court. See In re Ingram Towing Co., 59 F.3d 

513, 517 (5th Cir. 1995); see also Jensenius v. Texaco, Inc., Marine Dep’t., 639 F.2d 1342, 

1343–44 (5th Cir. Unit A Mar. 1981) (similar); Ibeto Petrochemical Indus. Ltd. v. M/T Beffen, 

475 F.3d 56, 61–62 n.1 (2d Cir. 2007) (“[a]n order staying an admiralty action in the district 

court pending arbitration is not a final order and is not appealable.” (quoting Lowry & Co. v. 

S.S. Le Moyne D’Iberville, 372 F.2d 123, 124 (2d Cir. 1967))). Therefore, appellate jurisdiction 

does not exist under section 1292(a)(3).

6 Also pending before this court is Bibby’s Motion for Leave to File Second Amended 

Notice of Removal, which Bibby filed after we questioned whether Bibby’s Notice of Removal 

was deficient as to its allegation of subject matter jurisdiction. Given that we lack appellate 

jurisdiction, this motion is denied as moot. We note that the district court cannot act without 

subject matter jurisdiction, but we express no opinion as to the merits of the motion for leave 

or the underlying jurisdictional issues it raises, leaving the district court to address these 

matters as necessary. 

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