NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHAD BARRY BARNES, No. 21-17094

Plaintiff-Appellant, D.C. No. 1:13-cv-00002-ACK-WRP v.

KRIS HENRY; ALOHA OCEAN MEMORANDUM* EXCURSIONS LLC,

Defendants-Appellees,

and

KRIS HENRY, INC.; et al.,

Defendants.

Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding

Submitted April 11, 2022** San Francisco, California

Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Chad Barnes was injured when the vessel he was working on exploded.

Barnes has litigated various claims in admiralty against his employer at the time of

the injury, Sea Hawaii Rafting, LLC (SHR), and SHR’s sole member and owner,

Kris Henry. This appeal concerns the district court’s denial of Barnes’s motion to

compel the transfer of a commercial-use permit, return the permit to him through

replevin, and order an injunction barring Henry, or his new company, from using the

permit. The district court concluded that it lacked jurisdiction to decide Barnes’s

motion because it raised “the same fundamental issues” that were pending on appeal

in this Court. Barnes timely appealed and contends that interlocutory jurisdiction

exists under 28 U.S.C. § 1292(a)(3). We disagree and dismiss for lack of jurisdiction.

Section 1292(a)(3) provides jurisdiction to review interlocutory orders that

decide “rights and liabilities” that “are substantive in nature,” such that they decide

“the merits of the controversies between [the parties],” not those that are “adjective,

tactical, or procedural.” Rogers v. Alaska S.S. Co., 249 F.2d 646, 649 (9th Cir. 1957)

(citation omitted). In determining whether a ruling decides the merits of a

controversy, we consider the “financial realities,” All Alaskan Seafoods, Inc. v. M/V

Sea Producer, 882 F.2d 425, 428 (9th Cir. 1989), as well as other “practical

matter[s],” Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125 (9th Cir. 1994). We

construe § 1292(a)(3) “narrowly” because it is an exception to the final judgment

rule. Sw. Marine Inc. v. Danzig, 217 F.3d 1128, 1136 (9th Cir. 2000). The district

2 court’s order denying Barnes’s motion on jurisdictional grounds neither defined his

rights or liabilities, nor addressed the merits of his case. Rogers, 249 F.2d at 649.

Thus, we lack interlocutory jurisdiction over the order that Barnes appealed.1

DISMISSED.

1 Barnes argues that the district court erred in finding that he agreed to allow Henry to retain and use the commercial-use permit “in perpetuity.” This issue is unrelated to the order appealed here and is beyond the scope of this appeal. See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50 (1995) (recognizing that the scope of interlocutory jurisdiction is generally limited to the “precise decision independently subject to appeal”). Barnes also argues that this appeal should be consolidated or joined with one of his other appeals. We have already decided the case that he seeks to consolidate or join with this appeal. See Barnes v. Henry, No. 21-16120, 2022 WL 501122 (9th Cir. Feb. 18, 2022). Therefore, this argument is moot.

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