Case: 16-31087 Document: 00514173391 Page: 1 Date Filed: 09/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-31087 FILED
September 27, 2017
Lyle W. Cayce
CLAIMANT ID 100128765, Clerk
Requesting Party - Appellant
v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,
Objecting Parties - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-13934
Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
This appeal involves a claim under the Deepwater Horizon Economic and
Property Damages Settlement. Bickford Appraisal Group is a real-estate-
appraisal company located in Hammond, Louisiana. As a zone D claimant
under the Settlement, Bickford was required to show causation in order to
recover losses. Bickford attempted to show causation by submitting published
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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articles discussing the effect on the real-estate-appraisal industry of the
financial reforms that resulted from the Dodd-Frank Act. The claims
administrator denied Bickford’s claim for failure to show causation. The
appeal panel upheld the claims administrator’s decision because Bickford
failed to provide objective third-party documentation. The district court then
denied discretionary review. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
The Deepwater Horizon oil spill and the resulting class-action settlement
are no strangers to this court. See, e.g., In re Deepwater Horizon, 785 F.3d
1003, 1008–09 (5th Cir. 2015) (discussing the background of appeals arising
out of the class-action settlement). Hence, we discuss only the facts necessary
for the resolution of this appeal.
Appellant Bickford Appraisal Group is a real-estate-appraisal company
located in Hammond, Louisiana. Bickford filed a “Business Economic Loss”
claim under the Deepwater Horizon Economic and Property Damages
Settlement Agreement (the “Settlement”). The Settlement divides various
geographic regions in the Gulf of Mexico into four economic loss zones: A, B, C,
and D. It is undisputed that Bickford is a zone D claimant.
In order to recover for losses pursuant to the Settlement, a zone D
claimant is required to establish causation through one of various tests. Those
tests are set out in Section III of Exhibit 4B of the Settlement. In a hearing
before the claims administrator, Bickford sought to establish causation
pursuant to the “Decline Only” test. That Exhibit set out three subparts to the
test, summarized in Policy Statement 474 in this abbreviated way:
1. The first prong of this test examines the decline in
percentage of revenue over three consecutive post-Spill months in
2010 compared to the same months in the Benchmark Period.
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2. The second prong requires the claimant to provide specific
documentation that identifies factors outside the control of the
claimant that prevented the recovery of revenues in 2011.
3. The third prong examines the decline in the share of total
revenue generated by certain customers over the same period of
three consecutive post-Spill months in 2010 as used in the first
prong . . . compared to the same three consecutive month period in
2009. The Settlement Program refers to this analysis as the
Customer Mix Test.
Relevant for this appeal, the second prong lists six factors, at least one of which
much be supported by documentation:
Specific documentation identifying factors outside the control of
claimant that prevented the recovery of revenues in 2011:
• The entry of a competitor in 2011
• Bankruptcy of a significant customer in 2011
• Nearby road closures affecting the business
• Unanticipated interruption resulting in closure of the
business
• Produce/Source replacement by Customer,
• Loss of financing and/or reasonable terms of renewal[.]
In an attempt to satisfy the second prong, Bickford submitted two
articles from an appraisal trade publication. Bickford alleged that these
articles explained that appraisal companies struggled in 2011 after the 2010
passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
According to Bickford, Dodd-Frank required lenders to go through
appraisal management companies to bid out appraisals, while before the
enactment, lenders could contract directly with appraisal companies to request
appraisals. Bickford contends that the new requirements had the effect of
driving down an appraiser’s revenues.
The claims administrator denied Bickford’s claim, summarizing the
reasons this way: “You have not provided documents sufficient to establish that
your lost revenue occurred as a result of the Spill, in accordance with Exhibit
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4B of the Settlement Agreement.” Bickford sought reconsideration, but the
request was denied.
The appeal panel then upheld the denial of Bickford’s claim. The appeal
panel interpreted the specific documentation requirement in Section III.C as
necessitating objective third-party documentation. The appeal panel
concluded that the articles and the information within the articles were not
objective. Bickford then sought discretionary review from the district court.
The district court denied review.
DISCUSSION
We review the district court’s denial of discretionary review for abuse of
discretion. Deepwater Horizon, 785 F.3d at 1011. Interpretation of the
Settlement itself, however, “is a question of contract law that this Court
reviews de novo.” Id. The district court can abuse its discretion in at least two
circumstances: when “the decision not reviewed by the district court [1]
actually contradicted or misapplied the Settlement Agreement, or [2] had the
clear potential to contradict or misapply the Settlement Agreement.” Holmes
Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016). We
also agree with a point made in an unpublished opinion, that one factor to
consider in deciding whether the district court abused its discretion is whether
the issue has divided the appeal panels. See Claimant Id 100226366 v. BP
Expl. & Prod., Inc., 671 F. App’x 940, 941 (5th Cir. 2016).
Bickford argues that the district court abused its discretion by leaving in
place a split with another appeal panel that considered an identically situated
claimant and by not correcting a legally incorrect definition of what it means
for documentation to be “objective.”
Bickford’s argument about a split between appeal panels relies on a
ruling by an appeal panel that addressed a different claim. The prior panel
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concluded that the same published articles Bickford submitted here were
sufficient documentation to satisfy the second prong of the Decline Only test.
For that ruling to create a conflict with the one now before us, it must have
involved substantially identical claimants relying on substantially identical
documentation.
One immediately noticeable difference is that the previous decision dealt
with a zone C claimant and not a zone D claimant like Bickford. Both zone D
and zone C claimants can utilize a Decline Only test to show causation. The
documentation for zone C claimants using the Decline-Only test is found in
Section II.C, while the zone D requirements are found in Section III.C. There
is at least one material difference. Section II.C requires “[s]pecific
documentation identifying factors outside the control of the claimant that
prevented the recovery of revenues in 2011, such as” the six factors we
previously quoted from Section III.C. Section III.C is identical except that
“such as” is omitted.
It is a small difference at first look, but upon reflection the difference
takes on a more meaningful aspect. One section lists representative
documentation while the other has an exhaustive list. Thus, the district court
did not allow a clear difference between appeals panels to go unaddressed.
This specific terminology is noted in Policy Statement 474: “The Claims
Administrator interprets the inclusion of the phrase ‘such as’ in Section II.C to
mean that the list of factors is not an exhaustive list.” It is completely
consistent with this interpretation for us to hold that the absence of “such as”
in Section III.C, which is the section that applies to this case, renders the list
of factors exhaustive.
We need not consider whether the appeal panel applied a legally
incorrect definition of “objective” when dismissing the documentation because
Bickford’s Dodd-Frank articles do not address any of the factors required by
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Section III.C. Bickford did not satisfy Section III.C because Bickford failed to
provide specific documentation addressing one of the enumerated factors.
The district court did not abuse its discretion in denying Bickford’s
petition for discretionary review.
AFFIRMED.
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