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, Plaintiffs-
Appellees,
v.
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Claimant-
Appellant.
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, Claimant-
Appellant.
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, Claimant-
Appellant.
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
*
Honorable Myron H. Bright, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
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. §§
1
The parties dispute whether there was contact between all
three vessels, and whether there were actually two collisions.
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
2
In its motions to dismiss, DEP also requested permission to
withdraw its claims against Bouchard and Maritrans.
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.
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
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.
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
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
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.
6
Neither 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.
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.