IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30593 December 17, 2018
Summary Calendar
Lyle W. Cayce
Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,
Requesting Parties - Appellants
v.
CLAIMANT ID 100225009,
Objecting Party - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-3381
Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
This case arises from the Deepwater Horizon Economic & Property
Damages Settlement Agreement (“Settlement Agreement”). BP challenges
Claimant’s award under the Court Supervised Settlement Program, arguing
that the award improperly included out-of-zone facilities. BP sought
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
No. 18-30593
discretionary review in the district court, but the district court denied review.
BP now appeals the district court’s denial of review. We AFFIRM.
Claimant, a general contractor, submitted a Business Economic Loss
(“BEL”) claim pursuant to the Settlement Agreement. Entities submitting
BEL claims can recover only if the entity, among other things, “owned,
operated, or leased a physical facility in the Gulf Coast Areas or Specified Gulf
Waters” from the Deepwater Horizon oil spill until April 16, 2012. Claimants
with multiple facilities can file a separate BEL claim for each qualifying facility
or a consolidated claim. Critical to this appeal is the fact that claimants cannot
file claims for facilities outside the Gulf Coast Areas.
On the claim form, Claimant indicated it had one facility, its
headquarters in Plant City, Florida. The Claims Administrator granted
Claimant an award. BP appealed the award, arguing that Claimant operated
two permanent out-of-zone facilities in New York and Georgia, as well as
trailers 1 at many of its out-of-zone construction projects. The Appeal Panel
rejected BP’s argument that the New York and Georgia locations constituted
facilities but remanded for further review of whether Claimant had out-of-zone
construction trailers that constituted facilities. The Claims Administrator
revised the award after determining that Claimant had one out-of-zone facility
during the relevant time period. BP again appealed. The second Appeal Panel
affirmed, holding that it would not disturb the first Panel’s finding that the
New York and Georgia locations were not facilities and that the Claims
Administrator sufficiently investigated whether Claimant had out-of-zone
construction trailers. BP then sought discretionary review in the district court.
The district court denied review, and BP timely appealed.
1 “A trailer placed at a construction site and used as a permanent office for the
duration of the construction project will typically be considered a facility.”
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We review the district court’s denial of review for abuse of discretion.
Holmes Motors, Inc v. BP Expl. & Prod. Inc., 829 F.3d 313, 315 (5th Cir. 2016).
In this context, the district court abuses its discretion when it denies review of
a decision that contradicts or misapplies the Settlement Agreement or had the
clear potential do to so. Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848
F.3d 407, 410 (5th Cir. 2017) (per curiam). But we are mindful not to transform
the district court’s discretionary review into mandatory review. In re
Deepwater Horizon, 785 F.3d 986, 999 (5th Cir. 2015). Thus, the district court
is not required to review a decision “which involve[s] no pressing question of
how the Settlement Agreement should be interpreted or implemented, but
simply raise[s] the correctness of a discretionary administrative decision in the
facts of a single claimant’s case.” Claimant ID 100212278, 848 F.3d at 410
(brackets in original) (quoting In re Deepwater Horizon, 641 F. App’x 405, 410
(5th Cir. 2016) (per curiam)).
BP makes three arguments on appeal. First, BP argues that Claimant’s
evidence demonstrates that the New York and Georgia addresses listed on
Claimant’s website constitute out-of-zone facilities under the Settlement
Agreement; thus, the Appeal Panel improperly determined that those locations
were not facilities. BP claims that the Appeal Panel’s decision therefore turned
on an erroneous application of the law.
The Settlement Agreement defines a facility as “[a] separate and distinct
physical location of a Multi-Facility Business at which it performs or manages
its operations.” Policy 467 further defines “facility” as “(a) [a] separate and
distinct physical structure or premises; (b) [o]wned, leased or operated by the
Business Entity; (c) [a]t which the Business Entity performs and/or manages
its operations.”
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No. 18-30593
Although BP attempts to construct this argument as a challenge to
interpretation of the Settlement Agreement, 2 it is actually a factual
determination. The Appeal Panel held that “Claimant presented evidence that
shows that these two locations are residential addresses where several
employees reside. The Claimant does not own, lease, or operate these
locations. This Panel agrees that these locations do not meet the definition of
a Facility.” The Appeal Panel’s reasoning tracks the language of Policy 467
and the Settlement Agreement, and BP accepts that Policy 467 accurately
interprets the definition of facility in the Settlement Agreement. We find
nothing warranting reversal in this argument.
Second, BP argues that the Claims Administrator and the second Appeal
Panel failed to meaningfully evaluate the evidence about whether Claimant
had out-of-zone construction trailers. This argument fails for a similar reason
as the first.
The first Appeal Panel requested that Claimant identify the name and
location of construction sites where Claimant owned, leased, or operated a
construction trailer during the relevant time period. It then remanded to the
Claims Administrator to determine whether any of the construction trailers
constituted out-of-zone facilities. The Claims Administrator determined that
four locations constituted facilities and that one was out-of-zone, and asked
Claimant to provide additional financial information regarding that trailer.
Based on the financial information, the Claims Administrator reduced
Claimant’s award to $1,294,192.94.
2 BP makes one argument grounded in interpretation of the Settlement Agreement.
It argues that the Appeal Panel erroneously concluded that Claimant did not operate the
New York and Georgia locations under Policy 467 A(b) because an entity must operate a
facility if it performs or manages its operations there under Policy 467 (A)(c). But this
argument is premised on the assumption that Claimant performed or managed its operations
at the New York and Georgia locations, and the Appeal Panel did not so conclude.
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No. 18-30593
On appeal, the second Appeal Panel concluded that the Claims
Administrator’s calculation notes, which detailed the investigative process
described above, were “sufficient to dispel the contention of BP that proper
investigation did not occur.” It also held that “[a]ny remaining argument in
this regard is based on conjecture and speculation and has no support in the
record. Likewise, the zero dollar final proposal of BP is unsupported by the
record.”
BP argues that the second Appeal Panel’s decision misapplies the
Settlement Agreement because the Settlement Agreement requires appeal
panels to undertake a de novo review of the record and to issue decisions that
are accurate and transparent in their reasoning. BP’s argument that the
Appeal Panel’s decision did not conform to these standards is rooted in its belief
that Claimant’s evidence demonstrates Claimant had many more out-of-zone
construction trailers. Thus, although framed in terms of misapplication of the
Settlement Agreement, in fact, BP takes issue only with the Appeal Panel’s
conclusion that BP’s argument is “based on conjecture and speculation and has
no support in the record.” BP’s argument “involve[s] no pressing question of
how the Settlement Agreement should be interpreted or implemented, but
simply raise[s] the correctness of a discretionary administrative decision in the
facts of a single claimant’s case.” Claimant ID 100212278, 848 F.3d at 410. It
does not support reversal.
BP’s third argument, that the district court abused its discretion by
denying review because Claimant’s attestation that its damages arose from the
Deepwater Horizon oil spill is implausible, is also based on its belief that the
record demonstrates the New York and Georgia locations are out-of-zone
facilities. We have previously addressed the give and take on causation
inherent in the Settlement Agreement in In re Deepwater Horizon, 744 F.3d
370, 378 (5th Cir. 2014) (“The Settlement Agreement contained many
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No. 18-30593
compromises [including] provid[ing] . . . only a limited way for connecting the
claim to the cause.”). We concluded that usual requirements for proving
causation are not part of the Settlement Agreement. As stated above, the
contested underlying factual determination does not involve construction of
the Settlement Agreement requiring the district court’s discretionary review.
Thus, we conclude that the district court did not abuse its discretion by denying
review on this ground.
AFFIRMED.
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