*

Honorable Myron H. Bright, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

United States Court of Appeals, Eleventh Circuit.

No. 95-2192.

In the Matter of the Complaint of BOUCHARD TRANSPORTATION CO.,

etc. for exoneration from or limitation of liability as owner of

the Tug Capt. Fred Bouchard and the Barge B No. 155, PlaintiffsAppellees,

v.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, ClaimantAppellant.

In the Matter of the Complaint of MARITRANS OPERATING PARTNERS

L.P., etc. for exoneration from or limitation of liability as owner

of the Tug Seafarer and the Barge Ocean 255, Plaintiffs-Appellees,

v.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, ClaimantAppellant.

In the Matter of the Complaint of TSACABA SHIPPING CO., INC.,

etc. for exoneration from or limitation of liability as owner of

the M/V Balsa 37, Plaintiffs-Appellees,

v.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, ClaimantAppellant.

Aug. 20, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 93-1321-CIV-T-23), Steven D. Merryday,

Judge.

Before COX and BARKETT, Circuit Judges, and BRIGHT*, Senior Circuit

Judge.

PER CURIAM:

The Florida Department of Environmental Protection ("DEP")

appeals the district court's order overruling its objection to

court-ordered mediation with the vessel owners who filed these

consolidated limitation actions. The district court either
 1

The parties dispute whether there was contact between all

three vessels, and whether there were actually two collisions. 

declined to rule or deferred ruling on various motions in which DEP

argued it was entitled to Eleventh Amendment immunity, and ordered

DEP to mediate. We conclude that the district court erred in

ordering DEP to mediate without first addressing the Eleventh

Amendment issue.

I. Background

On August 10, 1995, two tug-barge flotillas and a freighter

were involved in a collision near Tampa Bay, resulting in the spill

of petroleum products into Florida's navigable waters.1 The owners

of the flotillas, Bouchard Transportation Company ("Bouchard") and

Maritrans Operating Partners, L.P., ("Maritrans"), and the owner of

the freighter, Tsacaba Shipping Company ("Tsacaba"), separately

filed limitation of liability actions pursuant to the Limitation of

Liability Act, 46 U.S.C.App. §§ 181 to 189 (1994). The district

court enjoined litigation then pending against the vessel owners,

and ordered that all persons with claims against the vessel owners

be given notice to file their claims in the limitation actions by

a certain date, or face default. See FED.R.CIV.P., Supplemental

Rules for Admiralty and Maritime Claims, Rule F. DEP, a state

agency which claims the authority to pursue oil pollution claims on

behalf of the state, was served with notice in all three limitation

actions.

DEP filed answers and affirmative claims for relief under the

Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 to 2761 (1994), and

the Pollutant Spill Prevention and Control Act, FLA.STAT.ANN. §§
 2

In its motions to dismiss, DEP also requested permission to

withdraw its claims against Bouchard and Maritrans. 

376.011 to 376.21 (West 1988), in all three limitation actions.

Bouchard and Maritrans filed counterclaims against DEP. DEP then

moved to dismiss the Bouchard and Maritrans limitation actions and

counterclaims, arguing that the Eleventh Amendment prevents the

vessel owners from haling DEP into federal court.2 DEP also raised

Eleventh Amendment immunity in the Bouchard and Maritrans actions

through motions for protective orders and for stay of discovery.

Without ruling on DEP's motions to dismiss, the district court

consolidated the three limitation actions and ordered the parties

to participate in mediation for two months. DEP filed motions in

all three limitation actions objecting to the court-ordered

mediation on Eleventh Amendment grounds. The district court

overruled DEP's objections, noting that the vessel owners appeared

eager to settle the claims against them, and holding that the court

had inherent power to order mediation. DEP filed this appeal from

the district court's order overruling its objections to mediation.

II. Jurisdiction

The vessel owners moved to dismiss this appeal for lack of

jurisdiction. A motions panel of this court held that the district

court's order compelling DEP to participate in mediation was

immediately appealable, and we agree. See 11th Cir.R. 27-1(f)

(ruling of a motions panel is not binding on panel to which case is

assigned for disposition on merits). DEP argues that we have

jurisdiction over this appeal because the district court's order

rejected its assertion of Eleventh Amendment immunity. See Puerto
Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 147, 113 S.Ct. 684, 689, 121 L.Ed.2d 605 (1993) (holding that

a court of appeals has jurisdiction under 28 U.S.C. § 1291 to hear

prior to final judgment an appeal by a state entity claiming to be

an "arm of the state" from a district court order denying Eleventh

Amendment immunity); Schopler v. Bliss, 903 F.2d 1373, 1377 (11th

Cir.1990) (same). We agree with the vessel owners that the order

did not address Eleventh Amendment immunity. In the order, the

court declined to address the merits of pending motions, which

included DEP's motions to dismiss on Eleventh Amendment grounds,

deferring consideration to a later time.

 Even though the district court deferred a ruling on Eleventh

Amendment immunity, we have jurisdiction to review the court's

order directing DEP to mediate. See Collins v. School Bd. of Dade

County, 981 F.2d 1203, 1205 (11th Cir.1993) (holding that an order

declining to rule on qualified immunity pending trial is

immediately appealable). Like a public official's qualified

immunity, a state's Eleventh Amendment immunity is "an entitlement

not to stand trial or face the other burdens of litigation."

Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86

L.Ed.2d 411 (holding that a court of appeals has jurisdiction under

28 U.S.C. § 1291 to hear prior to final judgment an appeal from a

district court order denying a claim of qualified immunity);

Puerto Rico, 506 U.S. at 143-44, 113 S.Ct. at 687 (citing Mitchell,

472 U.S. at 526, 105 S.Ct. at 2815). The order thus effectively

denied DEP the right not to participate in this litigation. See

Collins, 981 F.2d at 1205.
 3

In its initial brief, DEP took the position that the

district court ruled on and denied Eleventh Amendment immunity in

the mediation order, and it is a close question whether DEP's

initial brief raises the argument that the district court erred

by reserving a ruling on its Eleventh Amendment immunity defense. 

Generally, issues not discussed in a party's initial brief are

deemed waived, but we construe briefs liberally in determining

the issues raised on appeal. Allstate Ins. Co. v. Swann, 27 F.3d

1539, 1542 (11th Cir.1994).

The vessel owners took the position in their briefs

that the district court reserved ruling on Eleventh

Amendment immunity in the mediation order, but they argued

that it was not error for the court to do so. DEP first

clearly advanced the theory that the district court erred by

reserving a ruling at oral argument. But DEP implicitly

raised this issue in its initial brief by arguing that the

Eleventh Amendment deprived the district court of subject

matter jurisdiction to enter the mediation order. Thus, DEP

has not waived this argument. 

III. Discussion

 As we have noted, the district court did not address whether

DEP was entitled to Eleventh Amendment immunity in the mediation

order, and we decline to exercise our discretion to address this

issue for the first time on appeal. See Lordmann Enterprises, Inc.

v. Equicor, Inc., 32 F.3d 1529, 1532 (11th Cir.1994) (declining to

address an issue that was raised in the district court but not

addressed by the district court), cert. denied, --- U.S. ----, 116

S.Ct. 335, 133 L.Ed.2d 234 (1995). DEP's second argument is that

the district court erred by ordering it to mediate before ruling on

its motions raising the defense of Eleventh Amendment immunity.3

The vessel owners argue that ordering mediation before ruling on

the complex Eleventh Amendment immunity question served the

important policies of encouraging settlements, conserving judicial

resources, and lowering the cost of litigation. Whether the

district court erred in reserving a ruling on Eleventh Amendment
immunity is an issue involving the district court's supervision of

litigation, and decisions on such issues are generally committed to

the sound discretion of the district court. See Pierce v.

Underwood, 487 U.S. 552, 559 n. 1, 108 S.Ct. 2541, 2547 n. 1, 101

L.Ed.2d 490 (1988) (stating that issues involving the district

court's supervision of litigation are commonly reviewed under an

abuse of discretion standard). Thus, we review the district

court's order overruling DEP's objections to mediation for an abuse

of discretion.

 The nature and purposes of Eleventh Amendment immunity

suggest that it is a threshold issue. While the Supreme Court has

held that the Eleventh Amendment is not jurisdictional in the sense

that courts must address the issue sua sponte, Patsy v. Board of

Regents, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567-68 n. 19, 73

L.Ed.2d 172 (1982), the Court has held that Eleventh Amendment

immunity is in the nature of a jurisdictional bar. Edelman v.

Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d

662 (1974) (holding that Eleventh Amendment immunity may be raised

for the first time on appeal). The fact that Eleventh Amendment

immunity, like qualified immunity, is a right to be free from the

burdens of litigation also suggests that it should be decided at an

early stage. See Puerto Rico, 506 U.S. at 143-44, 113 S.Ct. at 687

(citing Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815). Finally,

the Eleventh Amendment is a recognition that the states retain

certain attributes of sovereignty, and one of its purposes is to

protect states from the indignity of being haled into federal court

by private litigants. Puerto Rico, 506 U.S. at 146, 113 S.Ct. at
 4

Maritrans also argues that the district court did not err

in ordering DEP to mediate in the Maritrans limitation action

because DEP did not move to dismiss that case on Eleventh

Amendment grounds. But DEP filed objections to mediation on

Eleventh Amendment grounds in all three limitation actions, thus

adequately raising the issue in the district court. 

 5

The district court cited In re Novak, 932 F.2d 1397 (11th

Cir.1991) for this proposition. (R. 3-133 at 2.) Novak holds

that the district court's inherent powers include "the power to

issue orders necessary to facilitate activity authorized by

statute or rule." 932 F.2d at 1406. Local Rule 9.01 for the

Middle District of Florida authorizes the court to refer parties

to mediation for the purpose of encouraging settlement. 

M.D.Fla.R. 9.01. 

 6Neither party has suggested that discovery is needed before

the Eleventh Amendment issue in this case is addressed. We have

no occasion to consider whether the district court may enter

other preliminary orders, including orders relating to discovery,

before ruling on a claim of Eleventh Amendment immunity. 

689. This purpose is not served when a ruling on Eleventh

Amendment immunity is unnecessarily postponed.

 We hold that where, as here, the Eleventh Amendment question

presented is a purely legal one, the district court abuses its

discretion by reserving a ruling on immunity and ordering the

parties to mediate.4 In this case, the district court reasoned

that its inherent powers authorized ordering the parties to

mediate.5 While a district court's inherent powers may be

exercised when necessary to manage the court's affairs, they may

not be exercised with disregard to constitutional concerns. See In

re Novak, 932 F.2d 1397, 1406 n. 17 (11th Cir.1991) (stating that

inherent powers may not be exercised in contravention of statute or

rule). The mediation ordered by the district court was not

necessary to resolve the Eleventh Amendment issue presented by

DEP's motions, and was inconsistent with DEP's alleged right not to

participate in this litigation.6
We vacate the district court's order overruling DEP's

objections to mediation, and remand for further proceedings

consistent with this opinion.

VACATED and REMANDED.