### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30846

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 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May20, 2013 Ly l e W . Cay ce Clerk Case: 12-30846 Document: 00512247237 Page: 1 Date Filed: 05/20/2013No. 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: *

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

2 Case: 12-30846 Document: 00512247237 Page: 2 Date Filed: 05/20/2013No. 12-30306

A group of commercial oyster h a rve s t ers (“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 i s the State ’ s m o t i on to dismis s t h e appeal for lack of jurisdiction. C oncluding 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 asso ciated with the Deepwater Horizon oil s p ill. The O ystermen c l aim that the State, two contractors, a nd v arious subcontractors were grossly n egligent in dredging and construction during the project and that their n egligent actions damaged the Oystermen’s o yster leases. The Oystermen s ued to recover their losses in both state court a nd f

e d e r a l 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 dis t r i c t c ourt concluded th at it lacked subject matter jurisdiction o ver the Oystermen’s claims against the State. The district court determined that the Oystermen sought d amages that would be paid out of the State’s treasury and that the State had not waived its s overeign immunity from suit. Therefore, the district court dismissed these claims as barred by the E l e venth Amendment. The Oystermen’s claims against the remainin g 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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This c ourt has jurisdiction over i n t erlocutory appeals under 28 U. S

. C. § 1292(a) in certain circumstances. Here, the Oystermen contend that § 1292(a)(3) p r o v i d es a basis for the court’s jurisdiction. This provision gives federal c o urts of appeals jurisdicti o n over “[i]nterlocutory decrees of s uch district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in w hich a ppeals from final de c r e e s a re allowed.” § 1 292(a)(3). The State concedes that the u nderlying cause of a ction is a case in admiralty. It n e v ertheless argues th at the court l acks jurisdiction under § 1 292(a)(3), beca u s e th e district court’s order di d not “determin[e] the rights and liabilities of the parties.” Because interlocutory appeals are di sfavored, this court h as “tend e d to construe [the l anguage of § 1 292(a)(3)] rather narrowly.” Ingram Towing Co. v. Adnac, Inc. (In re I

ngram Towing Co.) , 59 F.3d 513, 516 (5th Cir. 1995). “As a general rule, w e have permitted appeals u nder § 1292(a)(3) w henever a n order i n an admiralty case dismisses a claim for relief on the merits. ” M S T a b e a Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of C omm’rs , 636 F.3d 161, 165 (5th Cir. 2011). But “[o]rders w hich do not determine parties’ substantive rights or liabilities

. . . are n ot appealable under section 1292( a) ( 3 ) , e v e n if those orders have important procedural consequences.” Francis ex rel. Francis v. Forest Oil Corp. , 7 98 F.2d 147, 150 (5th C ir. 1986). Thus, this court has held that i t lacked jurisdiction o ver appeals from orders granting a preliminary injunction, dismissi n g some, but n ot a ll, defendants for lack of personal jurisdiction or admiralty jurisdiction, and dismissing a counterclaim. Se e Allen , 116 F.3d at 154 (collecting cases). T h e district court’s jurisdictional rulings can determine the merit s o f a claim “[i]n the s pecial case w h ere the challenged basis of jurisdiction is also an element of plaintiff’s federal cause of action.” L e w is v. Knutson , 699 F.2d 230, 237 ( 5 th Cir. 1983). “[I]f the jurisdictional challenge d oes not i mplicate the

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merits of the cause of action,” however, it does not determine the p a r t ies 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 jur i s d i c tional ruling. I t did not reach the merits of the Oystermen’s claim: w hether the State owed a duty t o the Oystermen, whether it breached that d u ty, and whether that breach caused the Oystermen to be injured. Rather, it c oncluded o n l y t hat the Oystermen sought d amages from the state treasury and that the State had not waived its s overeign immuni t y . Therefore, the district court’s order di d n o t d etermine the parties’ substantive rights or liabilities, even though i t h a s i m p ortant procedural consequences. 1 We do not have jurisdiction over the Oystermen’s interlocutory appeal of this order.

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

1 When a juris dictional ruling f oreclos es the only f

orum in w hich a claim can be brought agains t a p arty, it m ay be d eterm inative of the p arties ’ s ubs tantive rights or liabilities

. See M S Ta bea , 636 F. 3d at 165. This is not the cas e here. 5 Case: 12-30846 Document: 00512247237 Page: 5 Date Filed: 05/20/2013