IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30778
FILED
March 20, 2019
Lyle W. Cayce
CLAIMANT ID 100248748, 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
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
Claimant ID 100248748 operates ██████████, a professional team
that plays in Gulf South. For damages sustained as a result of the Deepwater
Horizon oil spill, the Court Supervised Settlement Program (CSSP) concluded
that Claimant ID 100248748 was entitled to compensation in accordance with
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30778
the Economic and Property Damages Settlement Agreement. 1 Claimant ID
100248748 appeals the district court’s order that declines to review whether
its award was correctly calculated under the Settlement Agreement. We
affirm.
I.
Claimant ID 100248748’s claim is treated as a “Business Economic Loss”
(BEL) under the Settlement Agreement, which establishes a framework for
administering such claims. First, the Claims Administrator—who is charged
with making an initial determination of a claimant’s eligibility for an award—
calculates a claimant’s “Variable Profit” for a pre-spill and post-spill period. To
calculate the Variable Profit, “revenue must be matched with the variable
expenses incurred by a claimant in conducting its business.” In re Deepwater
Horizon, 2013 WL 10767663, at *3 (E.D. La. Dec. 24, 2013). Profits and
expenses are matched where “costs follow revenue.” In re Deepwater Horizon,
858 F.3d 298, 301 (5th Cir. 2017).
Under the district court’s direction, the Claims Administrator developed
Policy 495 as “an appropriate protocol or policy for handling BEL claims in
which the claimant’s financial records do not match revenue with
corresponding variable expenses.” In re Deepwater Horizon, 2013 WL
10767663, at *3. Policy 495 requires the Claims Administrator to identify
unmatched claims by evaluating a claimant’s profits and losses under seven
criteria. “Consideration of whether revenues and expenses are sufficiently
matched necessarily [requires the CSSP’s accountants to exercise] an element
of professional judgment.” If the claims do not match, Policy 495 requires the
CSSP’s accountants to “adjust the claimant-submitted accounting records”
1 BP Exploration & Production Inc., BP America Production Co., and BP p.l.c.
(collectively, BP) entered into the Settlement Agreement after the Deepwater Horizon oil
spill.
2
No. 18-30778
using the methodologies in Policy 495 “to achieve sufficient matching as per
the orders of the Court.”
We have explained that the methodologies in Policy 495 divide
“claimants into two categories: those engaged in construction, education,
agriculture, and professional services”—who are subject to Industry-Specific
Methodologies (ISMs), and those who are “engaged in everything else”—who
are subject to an Annual Variable Margin Methodology (AVMM). In re
Deepwater Horizon, 858 F.3d at 302. “The AVMM requires the Claims
Administrator to match all unmatched profit and loss statements.” Id. So,
“prior to calculating damages, the Claims Administrator must ensure that
costs are registered in the same month as corresponding revenue, regardless
of when those costs were incurred.” Id.
We recently held that the four ISMs were “inconsistent with the plain
text of the Settlement Agreement.” Id. at 303–04. We reasoned that “the ISMs
[inappropriately] require the Claims Administrator to move, smooth, or
otherwise reallocate revenue in violation of the Settlement Agreement.” Id. We
approved the AVMM, on the other hand, because “[m]atching unmatched profit
and loss statements promotes” treating similarly situated claimants alike. Id.
at 303.
In accordance with this framework, the Claims Administrator initially
determined that under the AVMM Claimant ID 100248748 was eligible to
receive $███████ 2 for its BEL claim. In coming to this determination, the
CSSP accountants found that Claimant ID 100248748’s profits and losses
triggered one of the seven criteria, 3 and so required further matching analysis.
2 After adding a “risk transfer premium” and “claimant accounting support” to this
figure, the total award ballooned to $███████.
3 Specifically, the accountants found that the sixth criterion was triggered because the
“variable margin percentages when compared between any two months included within the
Benchmark Year(s) and Compensation Year var[ied] by more than 50 percentage points.”
3
No. 18-30778
Claimant ID 100248748 requested reconsideration. The Claims Administrator
granted this request and, upon further review, concluded that three of the
seven criteria were triggered. 4 Accordingly, the Claims Administrator found
that Claimant ID 100248748 was eligible for an award of $███████—which,
after factoring in a “risk transfer premium” and “claimant accounting support,”
grew to $███████.
Claimant ID 100248748 sought review from a CSSP Appeal Panel, which
found “no error” in the Claims Administrator’s application of the AVMM or the
final award. Claimant ID 100248748 petitioned the district court to exercise
discretionary review over the CSSP’s determination, but the district court
declined. Claimant ID 100248748 appeals to this court, contending that the
district court abused its discretion.
II.
Judicial review of CSSP determinations is not required. Instead, the
Settlement Agreement “gives the district court discretion to decide whether it
will review an award at all.” In re Deepwater Horizon, 785 F.3d 1003, 1011 (5th
Cir. 2015). Disturbing the district court’s denial of review is unwarranted
unless we find an abuse of discretion. Holmes Motors, Inc. v. BP Expl. & Prod.,
Inc., 829 F. 3d 313, 315 (5th Cir. 2016). And we will find an abuse of discretion
only in limited circumstances. This task does not require us to “examine
whether the CSSP was actually correct.” Claimant ID 100250022 v. BP Expl.
& Prod., Inc., 847 F.3d 167, 170 (5th Cir. 2017). Rather, we consider whether
4 In addition to the sixth criterion, the accountants further concluded that the second
and seventh criteria were also triggered. The second criterion is triggered when the “total
revenue recorded in any month included in the Benchmark Year(s), Compensation Year or
2011 exceeds 20% of the claimant’s annual revenue for the year which includes that month.”
The seventh criterion is triggered when, “in any given month within the Benchmark Year(s)
or Compensation Year, the variance between that month’s percentage of annual revenues as
compared to that same month’s percentage of annual variable expenses exceeds 8 percentage
points.”
4
No. 18-30778
the CSSP’s “decision contradicts or misapplies the Settlement Agreement.” Id.
We ask whether the CSSP decision raises an issue that “is frequently recurring
or has divided” Appeal Panels. Claimant Id 100226366 v. BP Expl. & Prod.,
Inc., 671 F. App’x 940, 941 (5th Cir. 2016). We also consider whether the
determination would “substantially impact administration of the Settlement
Agreement” and whether “the district court’s decision was premised on an
error of law.” Claimant ID 100190818 v. BP Expl. & Prod., Inc., 718 F. App’x
220, 222 (5th Cir. 2018).
Where a party contests only “the correctness of a [single] discretionary
administrative decision” that involves “no pressing question of how the
Settlement Agreement should be interpreted or implemented,” we have said
that—if “the discretionary nature of the district court’s review is to have any
meaning”—we must affirm. In re Deepwater Horizon, 641 F. App’x 405, 410
(5th Cir. 2016) (citing In re Deepwater Horizon, 785 F.3d 986, 999 (5th Cir.
2015)).
As restated in Claimant ID 100248748’s reply brief, the question on
appeal is whether the district court abused its discretion when declining to
review the CSSP’s decision that (1) “incorrectly applied the [AVMM] to
Claimant ID 100248748’s already matched [profits and losses]” because CSSP
accountants failed to use sound professional judgment; and (2) “incorrectly
chose a Fiscal Year for Claimant ID 100248748 based solely on its
███████”—which Claimant ID 100248748 contends stems from “an
interpretation inconsistent with the Settlement Agreement and this Court’s
previous rulings.” According to Claimant ID 100248748, the CSSP chose a
July-June fiscal year, instead of a January-December fiscal year, because of an
5
No. 18-30778
improper “ISM revenue driven theory.” It contends the CSSP’s errors reduced
its award from approximately $███████ to $███████.5
BP counters that Claimant ID 100248748 failed to raise its first
argument before the CSSP and the district court, and so it is forfeited on
appeal. See Claimant ID 100197593 v. BP Expl. & Prod., Inc., 666 F. App’x
358, 363 (5th Cir. 2016). Indeed, it appears the argument has been forfeited on
appeal because Claimant ID 100248748 asked the district court to remand to
the CSSP “for further analysis under a January-December AVM[M] analysis.”
But, even if not forfeited, this argument implicates only the application of the
Settlement Agreement, not any pressing question regarding its interpretation.
And, although Claimant ID 100248748 argues that its second argument
involves an incorrect interpretation of the Settlement Agreement, it has not
explained whether the issue is frequently recurring or how it would have a
substantial impact on the Settlement Agreement’s administration. Claimant
ID 100248748 does not suggest that any of these issues have divided CSSP
Appeal Panels. Moreover, we have held that, where possible, the CSSP should
adhere to the claimant’s accounting methods in processing claims, and
Claimant ID 100248748’s accounting records used a July-June fiscal year. See
In re Deepwater Horizon, 858 F.3d at 303–04 (rejecting ISMs in favor of
processing revenues when claimant recorded them).
At bottom, this appeal presents yet another request to force the district
court to review the CSSP’s application of the Settlement Agreement. See In re
Deepwater Horizon, 641 F. App’x at 406 & n.1 (collecting cases). We reiterate
5 The larger figure also presumably includes a “risk transfer premium” and “claimant
accounting support” not relevant to this appeal.
6
No. 18-30778
that review of the CSSP’s decisions is not mandatory, and the district court did
not abuse its discretion by declining review here.
AFFIRMED.
7