IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20781

UNITED STATES OF AMERICA, 

 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

United States Court of Appeals

Fifth Circuit

FILED

October 1, 2019

Lyle W. Cayce

Clerk

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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 AlisonMadueke 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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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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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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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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