IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30173 FILED
February 8, 2019
Lyle W. Cayce
CLAIMANT ID 100261758, 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. 2:17-CV-16287
Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
This appeal involves a Business Economic Loss claim under the
Deepwater Horizon Economic and Property Damages Settlement Agreement
(“Settlement Agreement”). The claimant-appellant operates a furniture
manufacturing business located in Corinth, Mississippi. Because of the
claimant’s location in the Zone farthest from the Gulf of Mexico, it is not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30173
entitled to a presumption of causation under the Settlement Agreement but is
required to satisfy one of the Settlement Agreement’s tests for establishing
causation. Under the test that the claimant selected, it was required to show
a post-spill decline in the share of total revenue generated by customers located
in certain geographical areas.
After reviewing the claimant’s submissions, the Court Supervised
Settlement Program’s (“Settlement Program”) Claims Administrator denied
the claim. The claimant requested and obtained an explanation of the test
results, then submitted new customer data. The Claims Administrator again
reviewed the data and denied the claim. An administrative appeal panel
rejected the claimant’s request for a remand to allow it to cure the remaining
problems with still more customer data, and the district court declined to
exercise its discretionary review over that decision.
The claimant contends that the district court erred in denying review
because the claim should have been remanded to allow the claimant to submit
additional customer data. Appellees BP Exploration & Production, Inc., BP
America Production Company, and BP, P.L.C. (collectively “BP”) respond that
the claimant has had ample opportunities to furnish necessary documents to
support its claim. As discussed below, we conclude that the district court did
not abuse its discretion in denying review. We therefore AFFIRM.
I. BP Claim Appeal Process
In the wake of the April 2010 Deepwater Horizon 1 oil spill in the Gulf of
Mexico, BP entered into the court-supervised Settlement Agreement with a
class of plaintiffs who suffered economic and property damage because of the
1 Prior decisions describe the Deepwater Horizon disaster and explain the origins of
the Court Supervised Settlement Program and the Settlement Agreement. See, e.g., In re Oil
Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex., on Apr. 20, 2010, 910 F. Supp. 2d 891
(E.D. La. 2012), aff’d sub nom. In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014).
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spill. 2 Under the terms of the Settlement Agreement, a claimant submits its
claim to the Claims Administrator, who determines the claim’s validity. 3 The
claims administrator’s decision is subject to review by an administrative
appeal panel. 4 A claimant who is unsatisfied with the appeal panel’s decision
may then request discretionary review by the federal district court supervising
the Settlement Program. 5 The claimant may appeal the district court’s
judgment to this court. 6
II. BEL Causation Requirements and the Customer Mix Test
Under Exhibit 4B to the Settlement Agreement, the Causation
Requirements for Businesses Economic Loss Claims (“Exhibit 4B”), business
claimants that are not entitled to a presumption of causation must satisfy one
of several tests to establish causation. 7 The claimant in this case opted to
pursue the Decline-Only Revenue Pattern, one of the tests available to Zone
D 8 claimants. Under this test, claimants must satisfy three requirements: 1)
a decline of an aggregate of fifteen percent or more in total revenues over a
period of three consecutive months in 2010, after the spill, compared to the
same months in the pre-spill period selected by the claimant; 2) specific
2 See In re Deepwater Horizon, 785 F.3d 986, 989 (5th Cir. 2015).
3 See id.
4 See id.
5 See id. at 989-90.
6 Claimant ID 100196090 v. BP Expl. & Prod., Inc., No. 18-30137, 2018 WL 6600969,
at *1 (5th Cir. Dec. 13, 2018) (per curiam); see Rules Governing Discretionary Court Review
of Appeal Determinations, DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC & PROPERTY
DAMAGE CLAIMS, 6 (2015), http://www.deepwaterhorizoneconomicsettlement.com/docs/15643
-combined.pdf (“The only avenue for relief after Order and/or Judgment on Request for
Discretionary Court Review is entered is appeal to the United States Court of Appeals for the
Fifth Circuit.”). While our unpublished opinions are not controlling precedent, they may be
persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation
omitted).
7 Economic and Property Damages Settlement Agreement, Causation Requirements
for Businesses Economic Loss Claims (Exhibit 4B).
8 Under the Settlement Agreement, Corinth is within Zone D, the farthest Zone from
the Gulf of Mexico.
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documentation identifying factors outside the claimant’s control that
prevented the recovery of revenues in 2011, such as the entry of a competitor;
and 3) the Customer Mix Test, the requirement at issue in this appeal. 9
Under the Customer Mix Test, claimants located in a Zone some distance
from the Gulf can show causation by the oil spill if they can show they lost a
specified amount of revenue from customers located near the Gulf. The test
requires that claimants demonstrate proof of a decline of ten percent in the
share of total revenue generated by either non-local customers 10 or customers
located in Zones A, B, or C, 11 which are located closer to the Gulf of Mexico. 12
The decline must occur over the same time period used for analyzing total
revenue decline: the three-month period in 2010, after the spill, compared to
the three-month period in 2009, before the spill. 13 The claimant must submit
business documentation reflecting customers’ locations and sales associated
with those customers, 14 and the Claims Administrator uses mapping software
to verify each customer’s Economic Loss Zone and distance from the claimant. 15
The Claims Administrator’s Approved Policy 345 governs the application
of the Customer Mix Test. 16 It provides that Exhibit 4B places the burden on
9 Economic and Property Damages Settlement Agreement, Causation Requirements
for Businesses Economic Loss Claims (Exhibit 4B), at 7-9.
10 Non-local customers are defined as those residing more than 60 miles from the
claimant’s business location. Id. at 8 n.19.
11 This segment of customers can be used for business claimants, like the claimant in
this case, with customers in those Zones. Id. at 8.
12 Id. at 8-9.
13 Id. at 7-8.
14 Id. at 8-9.
15 Final Policy, Policy 345 v.3: Business Economic Loss Claims: Application of the
Customer Mix Test (2014), https://www2.deepwaterhorizoneconomicsettlement.com/un-
secure/pkpolicysearch.aspx (search Policy ID field for “345”; then click “View”; then click
“View”).
16 Claims Administrator’s Approved Policy 345 v3: Business Economic Loss Claims:
Application of the Customer Mix Test, DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC &
PROPERTY DAMAGE CLAIMS (2014), https://www2.deepwaterhorizoneconomicsettlement.com
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No. 18-30173
the claimant to demonstrate that it has satisfied the requirements of the test. 17
The policy states that, though it may be difficult or even impossible for some
claimants to satisfy this test, “the Claims Administrator interprets the
Settlement Agreement’s documentation requirements as mandatory,” and the
policy further notes that “[t]he Settlement Agreement does not grant the
Claims Administrator discretion to waive these document requirements.” 18
Policy 345 also provides that if customer addresses cannot be verified by
the Settlement Program, the Zone of such customers, and their distance from
the claimant, will be considered “unknown.” 19 The revenue generated from
those “unknown” customers weighs against a claimant attempting to show the
post-spill revenue decline required for the Customer Mix Test. More
particularly, revenue from those customers is excluded from the revenue
during the pre-spill period and included in the revenue during the post-spill
period. 20 The district court supervising the Settlement Program has explained
that the purpose of this unfavorable treatment is to prevent “claimants from
benefitting from their failure to provide complete customer mix data.” 21 A
comment in the exhibit to Policy 345 states that when claimants fail the
Customer Mix Test, “[a]dditional customer mix documentation is necessary to
verify the customer address.” 22
/un-secure/pkpolicysearch.aspx (search Policy ID field for “345”; then click “Create PDF”);
Final Policy, Policy 345 v.3: Business Economic Loss Claims: Application of the Customer Mix
Test.
17 Final Policy, Policy 345 v.3: Business Economic Loss Claims: Application of the
Customer Mix Test, at 1.
18 Id. at 2.
19 See id. at 2-3.
20 See id. at 3.
21 In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex., on Apr. 20, 2010,
MDL No. 2179, slip op. at 4 (E.D. La. May 5, 2017), http://www.deepwaterhorizoneconomic
settlement.com/docs/Discretionary_Review.pdf (navigate to page 442).
22 Final Policy, Policy 345 v.3: Business Economic Loss Claims: Application of the
Customer Mix Test, at 4.
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No. 18-30173
III. Incompleteness Process
The claimant relies on Claims Administrator’s Approved Procedure 469,
which describes the Settlement Program’s obligation under the Settlement
Agreement to facilitate class members’ submission of claim forms and
supporting documentation. This includes providing “assistance, information,
opportunities and notice” to give class members the best opportunity to be
deemed eligible for an award. 23 To that end, the procedure provides an
Incompleteness Process, through which claimants who have not submitted
documents necessary to completing their claim submissions are provided
Incompleteness Notices before their claims are denied. 24 The procedure
explains that the documents referenced in the notices are those without which
“the Claims Administrator cannot process the claim any further.” 25
IV. History of Appellant’s Claim
The claimant-appellant in this case filed its Business Economic Loss
claim in November 2013. In July and August 2016, the Settlement Program’s
accountant reviewer for the claim requested documentation identifying the
claimant’s customers’ residences and the revenue amounts attributable to
them. In August 2016, the claimant submitted its customer data. On
September 23, 2016, the Claims Administrator issued a denial of the claim
because of the claimant’s inability to establish the Customer Mix Test. In its
denial, the Claims Administrator included a spreadsheet highlighting
23 Claims Administrator’s Approved Procedure 469 v2: All Claims: Processing
Incomplete Claims, DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC & PROPERTY DAMAGE
CLAIMS (2017), https://www2.deepwaterhorizoneconomicsettlement.com/un-
secure/pkpolicysearch.aspx (search Policy ID field for “469”; then click “Create PDF”); Final
Procedure, Procedure 469 v.2: All Claims: Processing Incomplete Claims,
https://www2.deepwaterhorizoneconomicsettlement.com/un-secure/pkpolicysearch.aspx
(search Policy ID field for “469”; then click “View”; then click “View”).
24 Final Procedure, Procedure 469 v.2: All Claims: Processing Incomplete Claims, at 1.
25 See id. at 2.
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customers whose addresses could not be verified. A few days after the denial
notice was issued, the claimant requested an explanation of the customer mix
results, and a Settlement Program analyst gave an oral explanation to the
claimant’s counsel in a conference telephone call.
On October 24, 2016, the claimant requested re-review. 26 Despite the
requirement that claimants submit with a request for re-review any additional
documentation for the Settlement Program’s consideration, the claimant did
not submit updated customer mix data with its request for re-review. Instead,
it noted that it was “compiling complete and updated addresses which will be
uploaded as soon as available.” 27
Nearly two months later, on December 19, 2016, the Claims
Administrator, having received no new customer data, issued a Post-Re-
Review Denial Notice. The claimant sought reconsideration 28 and submitted
new customer data. The Claims Administrator issued a Post-Reconsideration
Denial Notice in March 2017 following review of the updated customer data.
The claimant next appealed to the administrative appeal panel, seeking
a remand to allow it to cure the remaining problems with the customer data.
The appeal panel upheld the Claims Administrator’s denial of the claim,
reasoning that “[g]iven the multiple opportunities that have already taken
place for Claimant to provide customer information, it is now too late to correct
26 Re-Review by the Program is available to claimants who have additional documents
to submit in support of their claims.
27 The claimant argues that it had less opportunity to satisfy the Customer Mix Test
than other claimants because it was not granted an extension of time to request re-review,
so it “found itself in Re-Review before it could finish compiling and submitting information
to satisfy the deficiencies noted in the initial Denial Notice.” However, the claimant (1) does
not claim to have formally requested an extension, as required by the Settlement Program;
and (2) did not submit any data for the re-review process during the 56 days between its
request for re-review and the Settlement Program’s Post-Re-Review Denial Notice.
28 Reconsideration by the Program is available to claimants who believe that the
Program failed to take relevant information or data into account or failed to follow the
Settlement Agreement’s standards.
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these submissions.” The claimant requested discretionary review by the
district court, which denied the request. The claimant timely filed this appeal
challenging that judgment.
V. Analysis
The claimant argues, first, that the Claims Administrator should have
issued an Incompleteness Notice prior to denying the claim, and second, that
the claim should have been remanded to allow the claimant another
opportunity to cure remaining deficiencies in its customer mix data. This court
reviews a district court’s denial of discretionary review for abuse of
discretion. 29 We find no abuse of discretion in the district court’s judgment.
First, as to the claimant’s argument that, under Policy 345, it was
entitled to an Incompleteness Notice prior to the denial of its claim, we disagree
and find that no such notice was required in this case. 30 We agree with BP’s
argument that the Incompleteness Process did not apply here because the
claimant’s submissions were not “incomplete.” The claimant submitted all of
the documents required to complete its claim submission, and the Claims
Administrator did not require any additional documents to process the claim. 31
Rather, the Claims Administrator had all of the documents necessary to run
the Customer Mix Test and process this claim, and the claimant’s submitted
data simply failed to meet the Settlement Agreement’s requirements.
While it is true that the Settlement Program is obligated to provide
assistance to claimants, the Settlement Program has done so in this case by
(1) twice asking the claimant for customer data documentation before denying
29 Claimant ID 100212278 v. BP Expl. & Prod. Inc., 848 F.3d 407, 410 (5th Cir. 2017)
(citation omitted).
30 Final Policy, Policy 345 v.3: Business Economic Loss Claims: Application of the
Customer Mix Test, at 4.
31 Final Procedure, Procedure 469 v.2: All Claims: Processing Incomplete Claims, at 1-
2.
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No. 18-30173
the claim; and (2) accommodating the claimant’s request for an explanation of
the Customer Mix Test results. The Settlement Program’s general obligation
to assist claimants does not justify requiring an Incompleteness Notice when
none is required under the terms of the specific applicable procedure. And this
court has previously rejected the argument, asserted by the claimant here, that
the denial of a claim is inconsistent with the Settlement Agreement’s general
“claimant-friendly” nature. 32 Therefore, we conclude that no Incompleteness
Notice was required in this case.
Second, we reject the claimant’s argument that its claim should have
been remanded to allow it another opportunity to cure remaining deficiencies
in its customer mix data. The claimant takes issue with the Claims
Administrator’s treatment of various customer addresses, including the
assignment of “unknown” status to addresses that could not be verified by the
Claims Administrator’s mapping software and the rejection of customer
addresses for which the claimant listed its own business address.
Based on our review of Exhibit 4B and Policy 345, it is clear that the
Settlement Program adhered to the rules governing performance of the
Customer Mix Test and processing of BEL claims. The Settlement Program’s
treatment of the customer addresses was proper because the claimant’s
submissions did not meet the Settlement Agreement’s clear requirements, of
which the claimant was (or should have been) aware from the outset.
Both Exhibit 4B and Policy 345 place the burden on the claimant to
demonstrate that it has satisfied the requirements of the Customer Mix Test.
The claimant was given multiple opportunities to address deficiencies in its
32Claimant ID 100217021 v. BP Expl. & Prod., Inc., 693 F. App’x 272, 275-76 (5th Cir.
2017) (per curiam) (“[Claimant] cites various sections of the Settlement Agreement that it
characterizes as ‘claimant-friendly.’ . . . [Claimant] herds the sections, identifies a common
theme, and says the CSSP’s denial of its claim is at odds with that theme. . . . [T]his does not
meet our abuse of discretion metric.”).
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No. 18-30173
submissions and is not entitled to endless opportunities to do so. 33 We agree
with the administrative appeal panel that no remand is warranted 34 because
this claimant has already been given all of the chances to which it is entitled. 35
We reject the claimant’s assertion that the appeal panel decision in this
case represents a split of authority with the appeal panel decisions cited by the
claimant. 36 In those decisions, remand was warranted based on the facts and
circumstances of those cases, including, in several cases, the Settlement
Program’s failure to provide any information to the claimant about customer
mix issues or the Program’s delayed provision of incorrect information.
Nor did the appeal panel decision in this case contradict or misapply the
Settlement Agreement, or have the clear potential to do so. 37 Based on the
facts of this case, the claimant was not entitled to an Incompleteness Notice or
a remand for another opportunity to cure remaining customer data
deficiencies. Accordingly, the district court did not abuse its discretion by
denying this request for review, which “simply raise[d] the correctness of a
discretionary administrative decision in the facts of a single claimant’s case.” 38
33 Under the circumstances of this case, we are unpersuaded by the claimant’s
assertion that it is entitled to an extra chance to cure deficiencies that were first raised at
the reconsideration stage. The claimant did not take advantage of the opportunities it was
previously given; it failed to submit any customer data during the re-review process.
34 See Claimant ID 100028922 v. BP Expl. & Prod., Inc., 710 F. App’x 184, 186-89 (5th
Cir. 2017) (per curiam) (affirming denial of discretionary review where appeal panel declined
to remand case because claimant was given opportunities to provide the missing Exhibit 4B
documentation during the re-review and reconsideration processes).
35 See Economic and Property Damages Settlement Agreement, ¶ 6 (providing for
claims appeal process through reconsideration and appeal to appeal panel).
36 See Claimant ID 100212278, 848 F.3d at 410 (quoting In re Deepwater Horizon, 632
F. App'x 199, 203-04 (5th Cir. 2015) (per curiam)).
37 Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016)
(quoting In re Deepwater Horizon, 641 F. App'x 405, 409-10 (5th Cir. 2016) (per curiam)).
38 Claimant ID 100212278, 848 F.3d at 410 (quoting In re Deepwater Horizon, 641 F.
App'x at 410).
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VI. Conclusion
For these reasons, we conclude that the district court did not abuse its
discretion in denying review of this claim. Accordingly, we AFFIRM the
district court’s judgment.
11