IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2013

Lyle W. Cayce

Clerk

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No. 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:*

* 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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No. 12-30306

A group of commercial oyster harvesters (“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 is the State’s motion to

dismiss the appeal for lack of jurisdiction. Concluding 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 associated

with the Deepwater Horizon oil spill. The Oystermen claim that the State, two

contractors, and various subcontractors were grossly negligent in dredging and

construction during the project and that their negligent actions damaged the

Oystermen’s oyster leases. The Oystermen sued to recover their losses in both

state court and federal 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 district court concluded that it lacked subject

matter jurisdiction over the Oystermen’s claims against the State. The district

court determined that the Oystermen sought damages that would be paid out of

the State’s treasury and that the State had not waived its sovereign immunity

from suit. Therefore, the district court dismissed these claims as barred by the

Eleventh Amendment. The Oystermen’s claims against the remaining

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 court has jurisdiction over interlocutory appeals under 28 U.S.C.

§ 1292(a) in certain circumstances. Here, the Oystermen contend that

§ 1292(a)(3) provides a basis for the court’s jurisdiction. This provision gives

federal courts of appeals jurisdiction over “[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.” 

§ 1292(a)(3). The State concedes that the underlying cause of action is a case in

admiralty. It nevertheless argues that the court lacks jurisdiction under

§ 1292(a)(3), because the district court’s order did not “determin[e] the rights and

liabilities of the parties.”

Because interlocutory appeals are disfavored, this court has “tended to

construe [the language of § 1292(a)(3)] rather narrowly.” Ingram Towing Co. v.

Adnac, Inc. (In re Ingram Towing Co.), 59 F.3d 513, 516 (5th Cir. 1995). “As a

general rule, we have permitted appeals under § 1292(a)(3) whenever an order

in an admiralty case dismisses a claim for relief on the merits.” MS Tabea

Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of Comm’rs, 636 F.3d 161, 165 (5th

Cir. 2011). But “[o]rders which do not determine parties’ substantive rights or

liabilities . . . are not appealable under section 1292(a)(3), even if those orders

have important procedural consequences.” Francis ex rel. Francis v. Forest Oil

Corp., 798 F.2d 147, 150 (5th Cir. 1986). Thus, this court has held that it lacked

jurisdiction over appeals from orders granting a preliminary injunction,

dismissing some, but not all, defendants for lack of personal jurisdiction or

admiralty jurisdiction, and dismissing a counterclaim. See Allen, 116 F.3d at

154 (collecting cases).

The district court’s jurisdictional rulings can determine the merits of a

claim “[i]n the special case where the challenged basis of jurisdiction is also an

element of plaintiff’s federal cause of action.” Lewis v. Knutson, 699 F.2d 230,

237 (5th Cir. 1983). “[I]f the jurisdictional challenge does not implicate the

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merits of the cause of action,” however, it does not determine the parties

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 jurisdictional ruling. It did not reach the merits of the Oystermen’s

claim: whether the State owed a duty to the Oystermen, whether it breached

that duty, and whether that breach caused the Oystermen to be injured. Rather,

it concluded only that the Oystermen sought damages from the state treasury

and that the State had not waived its sovereign immunity. Therefore, the

district court’s order did not determine the parties’ substantive rights or

liabilities, even though it has important procedural consequences.1 We do not

have jurisdiction over the Oystermen’s interlocutory appeal of this order.

CONCLUSION

Because the district court’s order is not appealable under 28 U.S.C.

§ 1292(a)(3), we DISMISS this appeal for lack of jurisdiction.

1 When a jurisdictional ruling forecloses the only forum in which a claim can be brought

against a party, it may be determinative of the parties’ substantive rights or liabilities. See

MS Tabea, 636 F.3d at 165. This is not the case here.

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