Lake Eugenie Land & Development, Inc. v. BP Exploration & Production, Inc.

EDITH BROWN CLEMENT, Circuit

Judge, dissenting.

A majority of this panel (1) affirms the district court’s December 24, 2013 order, (2) denies BP’s motion for a permanent injunction against the issuance or payment of awards to claimants whose injuries are not traceable to the Deepwater Horizon oil spill, and (3) holds that this panel is bound by the certification panel’s rulings on Article III, Rule 23, and the Rules Enabling *381Act.1 I respectfully dissent.

The judicial power of federal courts extends only to cases and controversies. There are but three irreducible constitutional requirements: an injury in fact, a causal connection between the injury and the conduct complained of, and that the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Despite the modern development of class actions under our law, the extent of our judicial power remains unchanged. It extends only to cases and controversies — redressable injuries with a causal connection. Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).

The Deepwater Horizon tragedy took eleven lives and caused great damage to our environment and region. Cases and controversies abounded. In light of this, the parties sought to negotiate a settlement agreement that would resolve these issues on an enormous, class-wide basis, one of the largest settlements in history. This was a settlement that would compensate claimants for “[l]oss of income, earnings or profits ... as a result of the” spill. Settlement Agreement § 1.3.1.2. The agreement was signed and the class was certified on December 21, 2012, with the support of the parties.

Two subsequent decisions of the Claims Administrator brought the parties into conflict. One was the Policy Statement endorsed by the district court in an order of March 5, 2013, that established the accounting methodology to be used to measure payments for Business Economic Loss claims under Exhibit 4C of the Settlement Agreement. The other was a Policy Statement that was issued on October 10, 2012, and adopted by the district court on April 9, 2013, that laid out a position on “Causation Requirements” in Exhibit 4B. It stated:

The Claims Administrator will thus compensate eligible Business Economic Loss and Individual Economic Loss claimants for all losses payable under the terms of the Economic Loss frameworks in the Settlement Agreement, without regard to whether such losses resulted or may have resulted from a cause other than the Deepwater Horizon oil spill provided such claimants have satisfied the specific causation requirements set out in the Settlement Agreement.

On October 2, 2013, a majority of our panel agreed that Exhibit 4C required matching of revenues and expenses, and remanded to the district court with the additional instruction to consider the issue of causation if raised by the parties. In re Deepwater Horizon, 732 F.3d 326 (5th Cir.2013) (“Deepwater Horizon I”). On remand, the district court declined to address the causation issues, and after a renewed motion to our panel, we remanded again on December 2, 2013, with instructions to consider the causation issues BP raised.

On December 24, 2013, the district court issued an order requiring the Claims Administrator to match revenue and expenses as directed by our October 2 opinion and subsequent order of December 2. This resolved the first dispute raised by the Claims Administrator’s Policy Statement, and no party has appealed this issue.

The district court also addressed the second disputed issue in an order that *382analyzed the causation issues we directed the court to consider. It held that BP was judicially estopped from arguing that individuals and entities whose injuries were not fairly traceable to the oil spill should not be able to recover. BP responded with an additional motion asking this court to put in place a permanent injunction to ensure that the Claims Administrator considers causation before paying out claims.

Meanwhile, another panel of this court heard challenges to the certification of the class action in this case and released an opinion on January 10, 2014, upholding the district court’s certification of the Settlement Agreement.2 The majority of that panel found no issue with upholding the certification of the Settlement Agreement, because the agreement as written “explicitly limits claims to those based on ‘[l]oss of income, earnings or profits suffered by Natural Persons or Entities as a result of the DEEPWATER HORIZON INCIDENT,’ .... As contemplated by the Class Definition, therefore, the class contains only persons and entities that possess Article III standing.” In re Deepwater Horizon, 739 F.3d 790, 803 (5th Cir.2014) (“Deepwater Horizon II ”).

The certification panel declined to address the Claims Administrator’s interpretation of the Settlement Agreement, leaving that issue for our panel’s consideration in light of our retention of jurisdiction. As the certification panel stated, “[t]he evi-dentiary standard to be applied by the Claims Administrator ... is a question of interpreting the Settlement Agreement and applying it to each individual claim, and we are not called upon to address those issues in this appeal.” Id. at 808. The opinion further acknowledged:

The parties now vigorously dispute how this evidentiary framework was intended to work. For its part, BP has argued in its subsequent submissions to the Deep-water Horizon I panel that “the Claims Administrator must make a threshold determination whether the claimant has suffered loss as a result of the spill” and that under footnote 1 of Exhibit 4B this “threshold determination must be made before applying the causation criteria outlined in Exhibit 4B.” The named plaintiffs hold a different view.

Id. at 807-08.

While the certification panel majority does not address what occurred after class certification, Judge Garza’s dissent traces the ostensible elimination of the causation requirement to the Policy Statement of the Claims Administrator. That interpretation stated that the program would “compensate ... claimants ... without regard to whether such losses resulted or may have resulted from a cause other than the Deepwater Horizon oil spill.” Id. at 823 (Garza, J., dissenting). This reading “effectively eliminated” the language requiring causation. Id. at 823 n. 5.

The majority adopts the view that the agreement as written does not eliminate causation or traceability, but “subordinate[s]” it. Specifically, Judge South-wick agrees with the certification panel that causation was contemplated by the Settlement Agreement. He points to the Business Economic Loss claim form informing claimants that, “[t]he Business Economic Loss Claim is for businesses ... that assert economic loss due to ,the spill.” *383Deepwater Horizon Economic and Property Settlement Business Economic Loss Claim Form (Purple Form) 1. Nine pages later, the form requires the claimant to certify under penalty of perjury “that the information provided in this Claim Form is true and accurate to the best of my knowledge.” Id. at 9. “Every claim BP argues suffers from some causal-nexus infirmity should have with it an attestation from the claimant or an attorney that the economic loss was caused by the spill.” To the majority, this attestation satisfies any concerns about causation.

The form certainly provides further evidence that causation was a critical part of the Settlement Agreement. The difficulty is that the interpretation and implementation of the agreement eliminated this requirement when the Exhibit 4B Policy Statement informed claimants that they would be compensated whether or not their injuries “resulted ... from a cause other than the Deepwater Horizon oil spill.” These decisions and pronouncements may not have been relevant for the certification panel majority, which declined to analyze issues that arose from the interpretation and implementation of the settlement after its approval by the district court, but they are crucial in assessing “whether the implementation of the Settlement Agreement is defective.” This interpretation that submitting forms that lack colorable causation was acceptable under the agreement was relied upon by attorneys, who urged uninjured plaintiffs to file claims “[i]f the numbers work.” BP Br. 77, Doc. 00512230427 (May 5, 2013) (citing R.16719). These attorneys were not urging perjury: they were merely interpreting the agreement in light of the Claims Administrator’s interpretation that was upheld by the district court. How can they be pursued for false statements for relying on these legally binding pronouncements, much less an individual, unrepresented claimant who lacks even this level of legal sophistication? This Policy Statement effectively eliminated the need for a claimant to allege injury traceable to BP’s conduct, and therefore raises once again the Constitutional concerns that the majority claims were “put to rest by the certification panel.”

The elements of standing do not end at certification, but continue to be vital throughout “the successive stages of litigation.” Lewis, 518 U.S. at 358, 116 S.Ct. 2174. Because this is a settlement class action, there are no successive stages of litigation: the certification stage and the proof stage have been combined. If someone is a member of the class, they recover. But while the certification panel analyzed the agreement as written, the subsequent implementation has expanded those who can recover even to those who cannot trace their injuries to BP’s conduct. This agreement, as implemented, is using the powers of the federal courts to enforce obligations unrelated to actual cases or controversies.

Judge Southwiek’s opinion points out the challenge of proving causation when multiple causes are at stake by offering the hypothetical of an accounting firm that experienced economic loss after the disaster in part because one of its three partners took medical leave. It is admittedly difficult to isolate multiple causes, and that is not what Article III requires. Even in that example, an argument can be made that the disaster impacted part of the firm’s losses. If so, these claimants can colorably assert injury due to the spill and are appropriate members of this class. A more fitting example here would be an accounting firm in Zone A where all three partners went on medical leave for several months after the disaster. The profits of their firm drop precipitously, but in no way due to the negligence of BP. Under Judge Southwick’s reasoning, the Settlement Agreement requires BP to pay these losses as well so long as they sign a claim *384form. But these plaintiffs have no injury-traceable to BP’s actions, and would not have standing to maintain a suit individually under Lujan. Nonetheless, because of the majority’s ruling here, these claimants will recover.

Perhaps recognizing that its ruling would lead to absurd results in at least a small number of cases, the majority states that the “[t]he claims administrator, parties, and district court can resolve real examples of implausible claims as they resolve other questions that arise in the handling of specific claims.” But I do not see how this statement provides any comfort in light of the district court’s ruling that BP is judicially estopped from arguing causation. And the majority declines to rule one way or the other on judicial estop-pel, which it inexplicably concludes is “an issue ... not relevant to our decision.” In the end, we are left with the majority’s holding that the Claims Administrator does not need to perform the “gatekeeping function” of ensuring that claims are not paid that are not plausibly traceable to the spill. Claimants whose losses had absolutely nothing to do with Deepwater Horizon or BP’s conduct will recover as a result of this ruling.

The number of claimants ultimately affected by this issue may well be small, but the constitutional principles are important because they assure the vigorous and fair resolution of disputes and respect the limitations on the power of the federal judiciary. I would reverse the district court’s holding on judicial estoppel and permanently enjoin the Claims Administrator from paying awards to claimants whose injuries are not traceable to the Deepwa-ter Horizon oil spill.

I respectfully dissent.

. Judge Dennis "concur[s] in the above-described conclusions reached by Judge South-wick and in the judgment he has written for the majority of this panel.” While this opinion refers to Judge Southwick's opinion as speaking for the ‘'majority,” it is worth noting that little of his analysis and reasoning carries the support of two panel members.

. While the decision of the certification panel is binding under our circuit's rule of orderliness, that opinion was careful to limit its holding to the class certification and settlement approval context. In addition, it was arguably premature for that panel to rule on the certification issue before ours had issued a final ruling on the proper interpretation of the Settlement Agreement. Much of the confusion, delay, and additional briefing in these cases could have been avoided if the cases had been consolidated into one panel.