In Re: Deepwater Horizon

Case: 14-30823 Document: 00513118071 Page: 1 Date Filed: 07/16/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 14-30823 July 16, 2015
Lyle W. Cayce
IN RE: DEEPWATER HORIZON Clerk

-----------------------------------------------------------

LAKE EUGENIE LAND DEVELOPMENT, INCORPORATED; BON
SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY,
INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA
CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER
FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD
LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on
behalf of themselves and all others similarly situated; HENRY HUTTO;
BRAD FRILOUX; JERRY J. KEE,

Plaintiffs - Appellees

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

Defendants - Appellants

Appeal from the United States District Court
for the Eastern District of Louisiana

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
In May 2012, BP Exploration & Production Inc. (“BP”) and related
entities reached a settlement with a class of individuals who suffered economic
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No. 14-30823
and property damage after the Deepwater Horizon incident. That settlement
agreement established a fund and an elaborate multi-tiered claims process. A
provision in the agreement governs the scope and timing of the parties’ access
to information about these claims as they advance through that process. The
district court determined that the provision did not entitle the parties to claim-
specific information until an initial decision about a claim’s eligibility had been
made by the settlement program. BP appeals that decision. Counsel for the
settlement class (“Class Counsel”) argue chiefly that this court lacks
jurisdiction to hear the appeal. We agree and DISMISS for lack of jurisdiction.
I. BACKGROUND
The district court approved the settlement and expressly adopted it in a
December 2012 order. The agreement (the “Settlement Agreement” or the
“Agreement”) provides that the district court retains “continuing and exclusive
jurisdiction over the Parties and their Counsel for the purpose of enforcing,
implementing and interpreting th[e] Agreement.” At the time of briefing in this
case, 288,000 claims had been filed, resulting in 75,000 awards totaling $5.2
billion.
The settlement regime (“Settlement Program”) provides for the
resolution of a variety of claims—e.g., business economic loss claims, vessel
damage claims, coastal real property damage claims—through a wide array of
procedures. Submitting a claim requires providing completed forms and
documentation proof such as tax returns and profit/loss statements.
After the Settlement Program makes a determination about a particular
claim’s eligibility, a claimant or BP may, in certain circumstances, avail
themselves of a multi-tiered internal review process crafted to “assure
accuracy, transparency, independence, and adherence” to the terms of the
Settlement Agreement. The deadline for internal appeal of an eligibility
determination is a function of which party appeals and the amount of the
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No. 14-30823
award, but all appeals must be filed within 30 days of notice of the award.
Appeals are heard de novo by a panel, whose decision is intended to be “final.”
Discretionary review, however, is available in the district court, which treats
the panel’s decision like a magistrate judge’s report and recommendation,
reviewing de novo any dispositive issues. See Fed. R. Civ. P. 72(b)(3).
The disputed provision here, § 4.4.14 of the Settlement Agreement,
governs access to information associated with individual claims and the precise
timing of that access. The relevant excerpt reads:
BP and Class Counsel shall have access to all Claim Files and
Claims-related data transferred to or generated in the Settlement
Program for any legitimate purpose including, without limitation,
the operation of BP’s separate [Oil Pollution Act] facility,
prosecuting and defending appeals, reviewing and auditing the
Settlement Program, reporting financial results, and pursuing
indemnification, contribution, subrogation, insurance and other
claims from third parties. However, BP and Class Counsel shall
not have access to any Claim Files for Claims that are being
processed and have not yet been resolved in the Settlement
Program except if the Claim File is needed by BP, a Claimant, or
their counsel to prosecute or defend an Appeal. 1
Class Counsel claim that BP violated § 4.4.14 by accessing claim-specific
information on an internal site run by the Claims Administrator and used
regularly by the parties in the normal operation of the Settlement Program.
BP counters that it was permitted to do so under § 4.4.14. After this dispute
arose, the Claims Administrator interpreted § 4.4.14 to permit both parties to
access claim-specific information before issuance of an eligibility notice. After
such notice, the Claims Administrator determined, BP and Class Counsel
could view the internal work files of the program.

1 The Settlement Agreement defines “Claim” as “any demand or request for
compensation . . . together with any properly completed form and accompanying required
documentation, submitted by a Claimant to the Settlement Program.” The terms “Claim File”
and “Claims-related data” are not defined in the Settlement Agreement.
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In February 2014, Class Counsel brought a motion seeking to block BP’s
access to claim-specific information before the Settlement Program made an
initial determination about a claim’s eligibility. The district court determined
in an order dated March 25, 2014 (the “March 25 Order”) that neither BP nor
Class Counsel should be permitted “access to any individual claim file before
the Program issues a Denial Notice or an Eligibility Notice.”
BP filed a motion for reconsideration and cited five examples of
situations where access to pre-determination, claim-specific data on one claim
helped the company detect an improper award on a post-determination claim.
For example, in one case, BP’s review of claim-specific data on a group of pre-
determination individual claims for property damage to a single building
revealed that a different claimant had already received a $1.8 million award
for the same damage alleged by the pre-determination claimants. BP appealed
that award, and an appeals panel reversed it. BP’s five examples show
improper awards totaling about $4 million. The district court adhered to its
prior holding in a June 6, 2014 order (the “June 6 Order”) denying BP’s motion
for reconsideration. 2 The court noted that BP’s request for “all pre-
determination data is not justified either by the express terms of the
Settlement Agreement or by the few examples it cites in its motion.” While “no
program handling hundreds of thousands of claims can be flawless,” the court
stated, the elaborate fraud-protection measures in place were sufficient to
protect BP.
BP has appealed, citing two bases for jurisdiction. First, BP contends
that this court has jurisdiction to review the district court’s Orders under the
collateral order doctrine. Alternatively, BP argues, this court can assert

2 For simplicity, we will refer to the March 25 and June 6 orders collectively as the
“Orders.”
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jurisdiction under 28 U.S.C. § 1292(a)(1), which permits appellate jurisdiction
in limited circumstances when, as relevant here, a court grants or modifies an
injunction. Finally, on the merits, BP claims that the district court incorrectly
interpreted the Settlement Agreement to prevent it from accessing claim-
specific data on unresolved claims.
II. DISCUSSION
The Orders did not terminate all proceedings in this case, so the panel
must first determine if jurisdiction exists. Because we conclude that we lack
jurisdiction under either the collateral order doctrine or § 1292(a)(1), we do not
reach the merits.
A. Collateral Order Doctrine
BP first invokes the collateral order doctrine as a basis for jurisdiction.
As relevant here, 28 U.S.C. § 1291 provides that the courts of appeal have
“jurisdiction of appeals from all final decisions of the district courts.”
Generally, a final decision is one “by which a district court disassociates itself
from a case.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995). The
collateral order doctrine—typically associated with Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 545–46 (1949)—is “best understood not as an
exception” to this finality rule, “but as a practical construction of it.” Will v.
Hallock, 546 U.S. 345, 349 (2006) (internal quotation marks and citations
omitted).
The doctrine supplies jurisdiction for a “‘small class’ of pre-judgment
orders that ‘finally determine claims of right separable from, and collateral to,
rights asserted in the action [and that are] too important to be denied review
and too independent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.’” Lauro Lines s.r.l. v. Chasser,
490 U.S. 495, 498 (1989) (quoting Cohen, 337 U.S. at 546). Put otherwise, we
have jurisdiction under the collateral order doctrine when an order: (1)
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conclusively determined the disputed question; (2) resolved an important issue
separate from the merits of the case; and (3) is effectively unreviewable on
appeal from a final judgment. See Will, 546 U.S. at 349; Richardson-Merrell
Inc. v. Koller, 472 U.S. 424, 431 (1985) (citation omitted). 3
“Importance” has sometimes been characterized as a discrete fourth
requirement and other times been wrapped up in an analysis of both the second
and third requirements. See Mohawk Indus. Inc. v. Carpenter, 558 U.S. 100,
107 (2009) (explaining that the question of whether a right is effectively
unreviewable “cannot be answered without a judgment about the value of the
interests that would be lost through rigorous application of a final judgment
requirement” (internal quotation marks and citation omitted)); Will, 546 U.S.
at 353 (recognizing that effective unreviewability requires that a “substantial
public interest” be imperiled); Lauro Lines, 490 U.S. at 502 (Scalia, J.,
concurring) (“The importance of the right asserted has always been a
significant part of our collateral order doctrine.”); Henry v. Lake Charles Am.
Press LLC, 566 F.3d 164, 178–181 (5th Cir. 2009) (analyzing “importance” as
a distinct fourth requirement); Eric J. Magnuson & David F. Herr, Federal
Appeals: Jurisdiction and Practice § 2.4 (2015) (same). 4
The Court has repeatedly stressed that the conditions for appeal under
the collateral order doctrine are “stringent.” E.g., Digital Equip. Corp. v.
Desktop Direct Inc., 511 U.S. 863, 868 (1994). Expanding the doctrine to permit
jurisdiction in too many cases risks allowing the exception to swallow the rule.

3 It is undisputed here that the Orders were conclusive and separate from the merits.
4 This court recently addressed the taxonomic uncertainty in this area in NCDR,
L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 748 n.5 (5th Cir. 2014) (“[I]t [is] not clear
whether importance is a fourth requirement or is instead wrapped up in the second and third
requirements.”). This is an academic dispute. It is quite clear from both the Supreme Court’s
collateral order doctrine jurisprudence and our own that the importance of the asserted right
is a significant component in the jurisdictional analysis under this doctrine.

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See Will, 546 U.S. at 349–50; Digital Equip., 511 U.S. at 868; Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (identifying the substantial
finality interests in judicial efficiency and the “sensible policy of avoiding the
obstruction to just claims that would come from permitting the harassment
and cost of a succession of separate appeals from the various rulings to which
a litigation may give rise” (internal quotation marks, alterations, and citation
omitted)).
A brief comparison of the types of orders immediately appealable under
the collateral order doctrine with those not immediately appealable is
instructive. Immediately appealable orders include: those rejecting absolute
immunity or qualified immunity; denying a state’s claim to Eleventh
Amendment immunity; and—in the criminal context—a defendant’s adverse
ruling on a double jeopardy defense. See Will, 546 U.S. at 350 (collecting cases).
These types of orders, the Court explained, implicate weighty public interest
concerns: in each one, “some particular value of a high order” was at issue. Id.
at 352.
By contrast, orders generally not immediately appealable under the
collateral order doctrine include: denial of a motion to enforce a forum selection
clause or to dismiss on forum non conveniens grounds, see Lauro Lines, 490
U.S. at 496; Van Cauwenberghe v. Biard, 486 U.S. 517, 527–530 (1988);
discovery orders generally (including orders permitting discovery into
otherwise-privileged, attorney–client communication because of waiver), see
Richard L. Marcus et al., Civil Procedure: A Modern Approach 1149–51 (6th
ed. 2013); Mohawk, 558 U.S. at 103, 108; attorney disqualification decisions,
see, e.g., Richardson–Merrell, 472 U.S. at 426 (order disqualifying counsel in
civil case not immediately appealable); Flanagan v. United States, 465 U.S.
259, 260 (1984) (same outcome in criminal case, despite Sixth Amendment
rights at issue); and an order refusing to enforce a settlement agreement that
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allegedly sheltered a party from suit, see Digital Equip., 511 U.S. at 879, 884
(“Including [an immunity] provision in a private contract . . . is barely a prima
facie indication that the right secured is ‘important’ to the benefited party.”). 5
The collateral order doctrine has been successfully invoked in favor of
jurisdiction in three appeals in this court arising from this Settlement
Program. In the first of these cases, this court heard an appeal arising from a
dispute about an interpretation of the Settlement Agreement. See In re
Deepwater Horizon, 732 F.3d 326, 329 (5th Cir. 2013) (“Deepwater Horizon I”).
The appeal involved an accounting methodology that potentially affected
“thousands of claimants” and “hundreds of millions of dollars” in the business
economic loss recovery framework. Id. at 331, 332 n.3, 345. We determined that
the district court’s order conclusively resolved the interpretive dispute, that
the dispute was “separate from the merits of BP’s liability for the oil spill,” and
that the order would “be effectively unreviewable on appeal from final
judgment because, at that point, the improper awards will have been
distributed to potentially thousands of claimants and BP will have no practical
way of recovering these funds should it prevail.” Id. at 332 n.3 (citing Walker
v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 766–67 (5th Cir. 1996)).
In two subsequent companion appeals, this court relied on Deepwater
Horizon I to again find jurisdiction under the collateral order doctrine. One of
these cases dealt with an order approving a set of final rules governing
discretionary review in the district court of internal appeal determinations. See

5 When assessing an order’s appealability, courts should not engage in an
“individualized jurisdictional inquiry.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 473
(1978). Instead, the focus should be on the “entire category to which a claim belongs.” Digital
Equip., 511 U.S. at 868; see also Mohawk, 558 U.S. at 107. Thus, in NCDR, this court looked
not to whether the order in that particular case was immediately appealable, but rather to
whether orders in that context would generally “satisfy the conditions of the collateral order
doctrine.” 745 F.3d at 748 (citing Henry, 566 F.3d at 173).
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In re Deepwater Horizon, 785 F.3d 986, 989 (5th Cir. 2015) (“Deepwater
Horizon II”). In that case, we asserted jurisdiction because the decision was
conclusive and separate from the merits, and because:
[t]he Final Rules affect the rest of the Settlement Program’s
administration, given that they will govern all future reviews by
the district court. Because the Final Rules preclude appeals of
certain cases to the district court, and because they are silent as to
appeals to this court and lack requirements to file requests or
docket orders on the civil docket, they would be unreviewable from
a final judgment of claim determinations were we not to review
them in this case.
Id. at 993 (emphasis added). The underlying order therefore had substantial,
settlement-wide ramifications.
The last relevant appeal (which in fact involved three consolidated
appeals from individual awards) centered on another interpretive dispute
about whether donations and grants could qualify as “revenue” for nonprofit
organizations under the Settlement Agreement for purposes of calculating loss.
See In re Deepwater Horizon, 785 F.3d 1003, 1006 (5th Cir. 2015) (“Deepwater
Horizon III”). This court decided that the three awards had conclusively
determined the recovery amount for the three claimants; that the dispute
about the interpretation of the Settlement Agreement with respect to nonprofit
revenue was completely separate from the merits; and that the order would be
“effectively unreviewable if BP had to wait until the settlement of the entire
class action, when awards ‘will have been distributed to potentially thousands
of claimants and BP will have no practical way of recovering these funds should
it prevail.’” Id. at 1009 (quoting Deepwater Horizon I, 732 F.3d at 332 n.3).
BP rightly concedes that not every dispute over an interpretation of the
Settlement Agreement resolved in the district court is immediately appealable
to this court. But the two primary limiting principles it proposes are
unsatisfying in this case. First, BP contends that this case, like the other BP

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appeals in which this court permitted application of the doctrine, involves an
important issue and effectively unrecoverable funds. Second, BP claims, this
case arrives here in a post-judgment posture. 6 The thrust of this argument is
that we need not fear opening up Pandora’s Box by permitting wholesale abuse
of the collateral order doctrine because appeals in the post-judgment context
are rare. We take these arguments in turn.
BP’s first contention is that its purported right to the information at
issue in this case presents an important issue with effectively unrecoverable
funds at stake. While these arguments might have justified immediate
appealability in Deepwater Horizon I, II, and III, they fall short in this case. In
each of the aforementioned cases, we determined that the orders at issue were
effectively unreviewable at least in part based on their broad ramifications to
the administration of the settlement. Appealability was endorsed in Deepwater
Horizon I because the interpretation affected “potentially thousands of
claimants.” 732 F.3d at 332 n.3. The same was true in Deepwater Horizon III.
See 785 F.3d at 1009. Deepwater Horizon II presented an even stronger case
for appealability because the rules at issue might have prevented certain
appeals to the district court and possibly all appeals to this court. See 785 F.3d
at 992–93. At issue in each of these cases was more than the right to an
accurate interpretation of a Settlement Agreement provision. The right in
these cases is better characterized as the right to an interpretation of the
Settlement Agreement on an issue with a serious impact on the effective and
fair administration of the settlement.
By that measure, the disputed issue in this case does not stack up. Here,
BP claims, principally, that it needs specific information about pre-

6 The case is post-judgment in the sense that a final order approving the settlement
has been entered. See Bogard v. Wright, 159 F.3d 1060, 1062 (7th Cir. 1998) (citing, inter
alia, Edwards v. City of Houston, 78 F.3d 983, 993 (5th Cir. 1996) (en banc)).
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determination “Claim A” in order to establish the legitimacy (or illegitimacy)
of separate, but related, post-determination “Claim B.” BP states that there
have been about 288,000 claims filed and 75,000 awards totaling $5.2 billion
at the time of briefing. But although by its own account it had “uninterrupted
access to claimant-specific information” (except internal Settlement Program
work files) for nearly 20 months, at the time of briefing BP had appealed 4,728
claim determinations, see Report by the Claims Administrator at 18, In re
Deepwater Horizon, MDL No. 2179 (E.D. La. Nov. 26, 2014), ECF No. 13729,
and directs the panel to only five fruitful appeals (from which it recouped about
$4 million) where pre-determination information proved useful to its success.
This does not constitute a showing of a disruption to the Settlement Program
framework rising to the level of the disruptions in Deepwater Horizon I, II, and
III, where either thousands of claims or all claims were unavoidably impacted
by the interpretations at issue. See Deepwater Horizon I, 732 F.3d at 332 n.3;
Deepwater Horizon II, 785 F.3d at 992–93; Deepwater Horizon III, 785 F.3d at
1009. Here, by contrast, BP has shown a total of five claims in which this data
appeared to have made any difference at all. 7
We similarly see little merit in BP’s argument that it needs this data for
“reviewing and auditing the Settlement Program” and “pursuing
indemnification, contribution, subrogation, insurance and other claims from

7 Still, BP argues, why is $4 million in proven fraud—detected at least in part with
the assistance of pre-determination data—insufficient to confer a right to immediate
appealability in this case? And BP correctly notes that both Walker v. U.S. Department of
Housing & Urban Development and Deepwater Horizon III—both of which permitted
appeal—involved amounts far below the $4 million at issue here. See Walker, 99 F.3d at 766–
67 ($910,228.13); Deepwater Horizon III, 785 F.3d at 1007 (involving awards totaling about
$1.2 million). But this argument misses the mark. We reiterate that an individualized
jurisdictional inquiry (one in which a court evaluates an order’s appealability based on the
particular facts presented, rather than looking to the category in which the asserted right
falls) is improper. See Mohawk, 558 U.S. at 107; NCDR, 745 F.3d at 748; Henry, 566 F.3d at
173.
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third parties.” BP never justifies its need for pre-determination, claim-specific
data to exercise these rights. If BP were seeking contribution or subrogation
for a particular claimant’s demonstrated loss, for example, it would
presumably be because that claim’s legitimacy had been conclusively
determined. By that time, BP would have access to any data it needs related
to that particular claim.
In addition, the Settlement Agreement has an entire preexisting
framework in place to address fraud. Anyone—including members of the
general public—can report fraud to the Claims Administrator, and a special
master, former Federal Bureau of Investigation Director Louis Freeh, has been
tasked with assisting the program with fraud prevention. The MDL docket
reveals that Freeh has been actively bringing claims to recoup fraudulently
obtained funds. Federal prosecutors, too, have brought criminal charges
against individuals who have allegedly committed fraud. 8 There was no
comparable way to recoup improper awards in Deepwater Horizon I, II, or III.
Even were it otherwise, “[t]he mere identification of some interest that
would be ‘irretrievably lost’ has never sufficed to meet the third Cohen
requirement.” Digital Equip., 511 U.S. at 872. This is why immediate
appealability is denied even when, as noted earlier, a criminal defendant seeks

8 When filling out paperwork to submit a claim, a claimant must declare under penalty
of perjury that the information provided is true and accurate. One mandatory form for all
claimants contains the following language: “I understand that false statements or claims . . .
may result in fines, imprisonment, and/or any other remedy available by law to the Federal
Government, and that suspicious claims will be forwarded to federal, state, and local law
enforcement agencies for possible investigation and prosecution.” The Department of Justice
has placed a “high priority on promptly investigating and prosecuting all meritorious reports
of fraud related to the oil spill and its aftermath.” See U.S. Dep’t of Justice, Deepwater
Horizon (BP) Oil-Spill Fraud, available at http://www.justice.gov/criminal/oilspill/. A website
owned and operated by BP that tracks legal developments related to the oil spill states that
there have been 264 reported fraud cases leading to criminal charges, and 187 convictions
stemming from reported fraud cases. See The Whole Story, State of the Gulf,
https://www.thestateofthegulf.com/the-whole-story/fraud-tally/ (last updated June 24, 2015).
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reinstatement of his disqualified attorney, see Flanagan, 465 U.S. at 260, or,
as in Coopers & Lybrand v. Livesay, an erroneous district court order would,
as a practical matter, sound the death knell for plaintiffs’ claims that might
have been successful had the error been corrected on appeal. See 437 U.S. 463,
473–74 (1978) (“Perhaps the principal vice of the ‘death knell’ doctrine is that
it authorizes indiscriminate interlocutory review of decisions made by the trial
judge.”). Orders like these result in harm far more irreparable than the injury
at issue in this case. Here, BP will eventually come into possession of all the
data it claims to need. At that time, it will be able to cross-check individual
claims for fraud that has not already been detected and pursue any of a variety
of available avenues to recoup improperly awarded funds.
Walker v. U.S. Department of Housing and Urban Development, on which
BP relies, is not to the contrary. See 99 F.3d at 766. In Walker, attorneys for
plaintiffs in a housing discrimination class action won fees for work they
undertook outside of the immediate scope of the litigation, including for
monitoring a consent decree and pursuing environmental claims to address
lead poisoning. See id. We held the fee order appealable under the collateral
order doctrine in part because the victories did not result from litigation, so the
orders were not “appealable or in any way subject to reversal.” Id. By contrast,
any fraudulently obtained award here—discoverable with the aid of the data
BP seeks—will be uncovered sooner or later, since BP will eventually have
access to this data. Even if this means BP will not be able to bring a timely
appeal in the Settlement Program—which is far from certain—other avenues
to challenge the award remain open. See In re Deepwater Horizon, 753 F.3d
516, 520 n.5 (5th Cir. 2014) (Clement, J., dissenting from denial of rehearing
en banc) (“BP may seek recovery for losses due to fraud in individual actions,

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and government prosecutors may pursue those who submit fraudulent
claims.”). 9
Interpreting effective unreviewability to permit appeal in this case
would signify that each time BP could show a handful of claims arguably
impacted by the district court’s interpretation of the Settlement Agreement, it
could immediately appeal to this court. The limited benefits of such
unrestricted access to the appellate court are outweighed by the attendant
systemic disruption and institutional cost. See Mohawk, 558 U.S. at 112;
Digital Equip., 511 U.S. at 884.
BP’s second contention, that there is little prospect for abuse of the
collateral order doctrine in the post-judgment context, is belied, first, by the
sheer quantity of appeals that BP, Class Counsel, and individual plaintiffs
have brought since reaching the Settlement Agreement. As noted above, BP
has appealed: a determination about the accounting method in the business
economic loss framework, see Deepwater Horizon I, 732 F.3d at 329–32; an
order approving the rules governing internal appeals procedures, see
Deepwater Horizon II, 785 F.3d at 989; and various claimant awards premised
on an interpretation of the Settlement Agreement governing nonprofit awards,
see Deepwater Horizon III, 785 F.3d at 1006. BP has also challenged: the
validity of the Settlement Agreement itself (No. 13-30095); the dismissal of a
lawsuit to enjoin the Claims Administrator from distributing payment on
business economic loss claims (No. 13-30329); the causation standards relevant
to certain business losses (No. 13-31220); the denial of a motion to recoup
business loss payments issued under a later-rejected accounting method (No.

9In Deepwater Horizon I, 732 F.3d at 332 n.3, however, Walker was properly invoked
because there is no indication that BP had recourse outside the immediate bounds of the
settlement framework to address awards calculated under an improper accounting
methodology. See Walker, 99 F.3d at 766.
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14-31165); and the denial of a motion to remove the Claims Administrator (No.
14-31299).
Class Counsel have filed their own various appeals, and dissatisfied
individual claimants have done so as well. Although the collateral order
doctrine has thus far supplied jurisdiction in Settlement Agreement disputes
only in Deepwater Horizon I, II, and III—and some of the other decided appeals
have asserted jurisdiction on other grounds—the potential for this “‘narrow’
exception . . . to swallow the general rule,” Digital Equip., 511 U.S. at 868
(citation omitted), is obvious enough.
The notion that we should loosen the strings in the context of post-
judgment proceedings like this one is further undermined by the increasing
frequency of court-supervised settlement agreements and consent decrees. 10
See Larry Kramer, Consent Decrees and the Rights of Third Parties, 87 Mich.
L. Rev. 321, 321 (1988) (recognizing that settlement by consent decree has
become increasingly common in antitrust cases, “environmental cases, prison
cases, school and housing desegregation cases, and especially employment
discrimination cases”). Our circuit alone is home to a multitude of ongoing
consent decrees related to, among other issues, desegregation of public
workplaces, prisoner’s rights, and health care mandates.

10 Although the Settlement Agreement at issue is not a consent decree, the judicial
imprimatur associated with the incorporation of the Agreement in the approval order and
the ongoing retention of jurisdiction renders the distinction thin. See Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 381 (1994); Smyth ex rel. Smyth v. Rivero, 282 F.3d 268,
281 (4th Cir. 2002) (“Where a settlement agreement is embodied in a court order such that
the obligation to comply with its terms is court-ordered, the court’s approval and the
attendant judicial over-sight (in the form of continuing jurisdiction to enforce the
agreement) . . . may be functionally a consent decree . . . .”); see also Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 618 (2001) (Scalia, J.,
concurring) (“[I]n the case of court-approved settlements and consent decrees, even if there
has been no judicial determination of the merits, the outcome is at least the product of, and
bears the sanction of, judicial action in the lawsuit.” (emphasis omitted)).

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No. 14-30823
In this case, as in the many others like it discussed above, an earlier
decision of ours in a multidistrict litigation “of nearly unprecedented scope”
illuminates the problem:
Before the litigation is completed, the case will undoubtedly
present numerous opportunities for parties dissatisfied with some
aspect of a court ruling to claim entitlement to appellate review.
In the context of such complex litigation it is important to
remember that “we must be parsimonious in our analysis of
appealability.”
In re Corrugated Container Antitrust Litig., 611 F.2d 86, 89 (5th Cir. 1980)
(citing N. Am. Acceptance Corp. Sec. Cases v. Arnall, Golden & Gregory, 593
F.2d 642, 645 (5th Cir. 1979)). The prospect for abuse of the collateral order
doctrine in post-judgment proceedings is plainly evident. We therefore reject
the notion that this would serve as an effective limiting principle were we to
permit appeal here.
We emphasize three additional reasons for our ruling today. First, we
highlight the deference “owe[d] to the trial judge as the individual initially
called upon to decide the many questions of law and fact that occur” over the
course of a litigation. Firestone Tire & Rubber Co., 449 U.S. at 374. “Permitting
piecemeal appeals would undermine the independence of the district judge, as
well as the special role that individual plays in our judicial system.” Id.; see
also Mohawk, 558 U.S. at 106–07; Johnson v. Jones, 515 U.S. 304, 315–17
(1995); Richardson–Merrell, 472 U.S. at 436. This is perhaps nowhere more
true than in the management of the Deepwater Horizon class action litigation,
the scope and size of which are nearly unprecedented. See In re Corrugated
Container Antitrust Litig., 611 F.2d at 89 (emphasizing special concerns about
overuse of the collateral order doctrine in complex litigation). 11

11To the extent that interpretation of § 4.4.14 of the Settlement Agreement might rest
on factual determinations about the parties’ course of conduct, a point BP presses in its
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No. 14-30823
Second, we call attention to the general rule that only serious and
unsettled questions of law come within the collateral order doctrine. See Nixon
v. Fitzgerald, 457 U.S. 731, 742 (1982) (“As an additional requirement, Cohen
established that a collateral appeal of an interlocutory order must ‘presen[t] a
serious and unsettled question.’” (citing Cohen, 337 U.S. at 547)); Baldridge v.
SBC Commc’ns, Inc., 404 F.3d 930, 931 (5th Cir. 2005); Davis v. E. Baton Rouge
Parish Sch. Bd., 78 F.3d 920, 925–26 (5th Cir. 1996). Deepwater Horizon I, II,
and III each involved issues that—regardless of how they were decided—would
unquestionably and substantially impact the judicially-managed
administrative framework. See Deepwater Horizon I, 732 F.3d at 332 n.3 (large
components of business economic loss framework affected); Deepwater Horizon
III, 785 F.3d at 1009 (same); Deepwater Horizon II, 785 F.3d at 992–93 (all
claims impacted). There is no comparable serious and unsettled question of law
here.
Finally, effective appellate review of orders interpreting the settlement
agreement can be had by other means. See Mohawk, 558 U.S. at 110–12;
Digital Equip., 511 U.S. at 883. First, aggrieved parties in this situation might
employ 28 U.S.C. § 1292(b), which permits discretionary interlocutory appeal
from a district court order “involv[ing] a controlling question of law as to which
there is substantial ground for difference of opinion.” The “discretionary appeal
provision (allowing courts to consider the merits of individual claims) would
seem a better vehicle for vindicating serious contractual interpretation claims
than the blunt, categorical instrument of § 1291 collateral order appeal.”
Digital Equip., 511 U.S. at 883 (citations omitted). Further, in extraordinary

briefing, deference to the district court is even more appropriate. See 15A Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure § 3911.5 (“[T]he considerations that cause
appellate courts to confide in trial court discretion should affect the timing of appeal as well
as the scope of review.”).
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No. 14-30823
cases, a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, is
available to correct manifest injustices. See Cheney v. United States Dist. Court
for D.C., 542 U.S. 367, 380 (2004). 12 In light of the foregoing analysis, we are
unpersuaded that the Orders here are appealable under § 1291.
B. § 1292(a)(1)
BP’s second proffered basis for appellate jurisdiction is 28 U.S.C.
§ 1292(a)(1), which permits jurisdiction over appeals from “[i]nterlocutory
orders . . . granting, continuing, modifying, refusing or dissolving injunctions.”
Just as it has done with the collateral order doctrine, the Court has
“approach[ed] this statute somewhat gingerly lest a floodgate be opened” that
permits immediate appeal over too many nonfinal orders. Switz. Cheese Ass’n,
Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24–25 (1966) (emphasizing a strong
“congressional policy against piecemeal appeals”).
A district court “grant[s]” an injunction when an action it takes is
“directed to a party, enforceable by contempt, and designed to accord or protect
some or all of the substantive relief sought in the complaint in more than a
temporary fashion.” Police Ass’n of New Orleans Through Cannatella v. City of
New Orleans, 100 F.3d 1159, 1166 (5th Cir. 1996) (internal quotation marks
and citation omitted); 16 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 3922 (3d ed. 2014); see also Black’s Law Dictionary
855 (9th ed. 2009) (defining injunction as a “court order commanding or
preventing an action”). A district court “modif[ies]” an injunction when it
“changes the obligations imposed by the injunction.” 16A Wright & Miller

12BP mentioned mandamus relief in passing in its reply brief. Even if it has waived
this argument, “[t]his court has the discretion to treat an appeal as a petition for a writ of
mandamus.” In re Grand Jury Subpoena, 190 F.3d 375, 389 n.16 (5th Cir. 1999). Failing to
see an “exceptional circumstance[] amounting to a judicial usurpation of power or a clear
abuse of discretion,” Cheney, 542 U.S. at 380 (internal quotation marks and citations
omitted), we do not believe mandamus relief is appropriate here.
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§ 3924.2. On the other hand, a court has not modified an injunction when it
“simply implements an injunction according to its terms or [] designates
procedures for enforcement without changing the command of the injunction.”
Id. Interpretation, then, is not modification. See In re Seabulk Offshore Ltd.,
158 F.3d 897, 899 (5th Cir. 1998). This court takes a practical view of
modification, “look[ing] beyond the terms used by the parties and the district
court to the substance of the action.” Id.
In addition to showing that an order granted, modified, refused, or
dissolved an injunction, a party challenging an interlocutory order must show
“serious, perhaps irreparable, consequence[s],” because the § 1292(a)(1)
“exception is a narrow one,” Gardner v. Westinghouse Broad. Co., 437 U.S. 478,
480 (1978) (internal quotation marks and citation omitted); see also Carson v.
Am. Brands, Inc., 450 U.S. 79, 84 (1981).
BP asserts that the March 25 Order interpreting § 4.4.14 of the
Settlement Agreement constituted an injunction. Alternatively, BP proposes
that the district court’s approval of the settlement constituted an injunction,
which was in turn modified by the March 25 Order and the subsequent denial
of the motion for reconsideration. Class Counsel argue that neither the Orders
nor the settlement approval provided injunctive relief, and alternatively that
the Orders merely interpreted (rather than modified) any putative injunction.
Even assuming arguendo that the March 25 Order was an injunction or
that the settlement approval order was an injunction modified by the Orders,
BP has not shown “serious, perhaps irreparable, consequence[s].” Gardner, 437
U.S. at 480. As articulated in our discussion on the collateral order doctrine,
any harm here is adequately reparable through the multiple avenues BP has
to pursue awards obtained fraudulently. See Sampson v. Murray, 415 U.S. 61,
90 (1974) (“The possibility that adequate compensatory or other corrective
relief will be available at a later date . . . weighs heavily against a claim of
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No. 14-30823
irreparable harm.” (internal quotation marks and citation omitted)); Miss.
Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 629 (5th Cir.
1985) (“[I]t is nevertheless settled that an injury is ‘irreparable’ only if it cannot
be undone through monetary remedies.” (internal quotation marks,
alterations, and citation omitted)). Further, there has been no showing, unlike
in Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (Scalia, J., in
chambers), on which BP relies, that a “substantial portion” of the fraudulent
awards “will be irrevocably expended.”
III. CONCLUSION
We therefore DISMISS this appeal for lack of jurisdiction.

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No. 14-30823
JENNIFER WALKER ELROD, Circuit Judge, dissenting:
The majority opinion is well-reasoned, and were we writing on a clean
slate, I might be inclined to join it. 1 Nevertheless, because I believe that
Deepwater Horizon I, II, and III support a determination of jurisdiction under
the collateral order doctrine, I respectfully dissent. The interlocutory order at
issue here “conclusively determined the interpretation dispute, which is
completely separate from the merits of BP’s liability for the oil spill,” In re
Deepwater Horizon, 732 F.3d 326, 332 n.3 (5th Cir. 2013) (“Deepwater Horizon
I”), and it will be effectively unreviewable on appeal because BP will have no
practical way to recover on appeal from final judgment. See id.; In re
Deepwater Horizon, 785 F.3d 986, 993 (5th Cir. 2015) (“Deepwater Horizon II”);
In re Deepwater Horizon, 785 F.3d 1003, 1009 (5th Cir. 2015) (“Deepwater
Horizon III”). In addition, the order at issue here will “affect the rest of the
Settlement Program’s administration,” Deepwater Horizon II, 785 F.3d at 993,
and in particular, BP’s ability to detect and appeal fraudulent awards.
BP has presented five examples of successful appeals in which access to
pre-determination information was necessary, and these examples amount to
$4 million in prevented fraud. In Deepwater Horizon III, we reviewed an

1 In creating the collateral order doctrine, the Supreme Court interpreted 28 U.S.C.
§ 1291—which confers appellate jurisdiction on the courts of appeals over only “final
decisions” of federal district courts—to include a grant of authority to review certain orders
traditionally considered non-final. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
545–47 (1949). The Court recognized that this was a “practical rather than a technical
construction” of § 1291. Id. at 546. Perhaps in part because of the doctrine’s tension with
the text of § 1291 and § 1292 (which expressly grants appellate jurisdiction over specified
interlocutory orders), the Court cautioned that the doctrine should be limited to “that small
class” of decisions that involve “serious and unsettled question[s]” and “which finally
determine claims of right separable from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” Id. at 546, 547 (emphasis
added).
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interlocutory order denying discretionary review of three individual awards to
non-profits with disputed amounts totaling only about $1.2 million. 785 F.3d
at 1007; see also ante, at 11 n.7. Despite the relatively small number of awards
and amount in controversy, we recognized that the order had implications for
the calculation of awards made to other non-profits. Id. at 1009. A similar
inference is appropriate here. Because, as BP explains, the district court’s
order here impacts BP’s ability to determine whether awards comply with the
Settlement Agreement’s award criteria, under our precedent, the order
involves a question sufficiently important to trigger jurisdiction under the
collateral order doctrine. See id. (determining jurisdiction under the collateral
order doctrine and recognizing that the doctrine is limited to orders that
“resolve an important issue completely separate from the merits” (emphasis
added) (internal quotation marks omitted)). Moreover, the reasons for
determining that we have jurisdiction are even stronger here than in
Deepwater Horizon III. In this case, we deal not with potentially miscalculated
awards, but rather with potentially fraudulent ones that should not have been
awarded at all.
Therefore, I would determine that we have jurisdiction over this appeal
under the collateral order doctrine and reach the merits. On the merits, I
would reverse the judgment of the district court because it conflates the terms
“Claims-related data” and “Claim Files” in § 4.4.14 of the Settlement
Agreement. I respectfully dissent.

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