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

JENNIFER WALKER ELROD, Circuit Judge,

dissenting.

The majority opinion is well-reasoned, and were we writing on a clean slate, I might be inclined to join it.1 Nevertheless, because I believe that Deepwater Horizon I, II, and III support a determination of *493jurisdiction under the collateral order doctrine, I respectfully dissent. The interlocutory order at issue here “conclusively determined the interpretation dispute, which is completely separate from the merits of BP’s liability for the oil spill,” In re Deep-water Horizon, 732 F.3d 326, 332 n. 3 (5th Cir.2013) (“Deepwater Horizon I ”), and it will be effectively unreviewable on appeal because BP will have no practical way to recover on appeal from final judgment. See id.; In re Deepwater Horizon, 785 F.3d 986, 993 (5th Cir.2015) (“Deepwater Horizon II”); In re Deepwater Horizon, 785 F.3d 1003, 1009 (5th Cir.2015) (“Deep-water Horizon III ”). In addition, the order at issue here will “affect the rest of the Settlement Program’s administration,” Deepwater Horizon II, 785 F.3d at 993, and in particular, BP’s ability to detect and appeal fraudulent awards.

BP has presented five examples of successful appeals in which access to predetermination information was necessary, and these examples amount to $4 million in prevented fraud. In Deepwater Horizon III, we reviewed an interlocutory order denying discretionary review of three individual awards to non-profits with disputed amounts totaling only about $1.2 million. 785 F.3d at 1007; see also ante, at 487 n. 7. Despite the relatively small number of ¿wards and amount in controversy, we recognized that the order had implications for the calculation of awards made to other non-profits. Id. at 1009. A similar inference is appropriate here. Because, as BP explains, the district court’s order here impacts BP’s ability to determine whether awards comply with the Settlement Agreement’s award criteria, under our precedent, the order involves a question sufficiently important to trigger jurisdiction under the collateral order doctrine. See id. (determining jurisdiction under the collateral order doctrine and recognizing that the doctrine is limited to orders that “resolve an important issue completely separate from the merits”- (emphasis added) (internal , quotation marks omitted)). Moreover, the reasons for determining that we have jurisdiction are even stronger here than in Deepwater Horizon III. In this case, we deal not with potentially miscalculated awards, but rather with potentially fraudulent ones that should not have been awarded at all.

Therefore, I would determine that we have jurisdiction over this appeal under the collateral order doctrine and reach the merits. On the merits, I would reverse the judgment of the district court because it conflates the terms “Claims-related data” and “Claim Files” in § 4.4.14 of the Settlement Agreement. I respectfully dissent.

. In creating the collateral order doctrine, the Supreme Court interpreted 28 U.S.C. § 1291 — which confers appellate jurisdiction on the courts of appeals over only "final decisions” of federal district courts — to include a grant of authority to review certain orders traditionally considered non-final. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Court recognized that this was a "practical rather than a technical construction” of §.1291. Id. at 546, 69 S.Ct. 1221. Perhaps in part because of the doctrine's tension with the text of § 1291 and § 1292 (which expressly grants appellate jurisdiction over specified interlocutory orders), the Court cautioned that the doctrine should be limited to "that small class " of decisions that involve “serious and unsettled question[s]” and "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. at 546, 547, 69 S.Ct. 1221 (emphasis added).