           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-31221                            May 30, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
CLAIMANT ID 100324302,

              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. 2:18-CV-8859


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       This appeal arises from the district court’s denial of discretionary review
under the Deepwater Horizon Economic and Property Damages Settlement
Agreement. We find no abuse of discretion in the district court’s denial of
review. Therefore, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31221
                                       I.
      After the Deepwater Horizon oil spill, BP Exploration & Production, Inc.,
BP America Production Company, and BP, p.l.c. (collectively, “BP”), entered
into a settlement agreement with a class of plaintiffs suffering damages in
connection with the spill. See generally In re Deepwater Horizon, 785 F.3d 986,
989 (5th Cir. 2015). The settlement agreement created a program by which the
claims administrator reviews plaintiffs’ claims for compensation. A dissatisfied
party can seek review of the claims administrator’s award, or lack thereof, from
an appeal panel.
      Rather than requiring each claimant to put forth evidence that the oil
spill caused its loss, the settlement agreement allows claimants to demonstrate
causation by satisfying one of several revenue tests set forth in Exhibit 4B.
Relevant here, claimants in geographic “Zone D” can demonstrate causation by
satisfying the “Decline-Only Revenue Pattern” test. Put simply, the claimant
must show that its revenues declined after the spill and continued to decline
during the next year, 2011. The claimant must also provide “[s]pecific
documentation identifying factors outside the control of the claimant that
prevented the recovery of revenues in 2011.” One such factor is “[t]he entry of
a competitor in 2011.” The claims administrator further explained in Policy
474 that a claimant “must submit objective, third-party documentation that
identifies factors outside the control of the claimant that prevented the
recovery of revenues in 2011.”
      Claimant is a road- and bridge-construction company located in Zone D.
Claimant argues that it has satisfied the Decline-Only Revenue Pattern test;
specifically, it argues that it has demonstrated that a competitor bridge-
construction company entered the market in 2011. In support of its claim,
Claimant submitted (1) the alleged competitor’s promotional materials, which
state that it is a bridge-building company serving states across the Southeast,
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including Alabama, where Claimant is located; (2) the alleged competitor’s
filing with the Alabama Secretary of State, showing that the competitor
intended to begin transacting business in Alabama on March 10, 2011; and (3)
a bidding list showing that Claimant and the alleged competitor bid on two of
the same public works projects during 2011.
        Although the claims administrator initially found Claimant eligible for
compensation, the appeal panel reversed, finding that Claimant had not
submitted sufficient documentation to show that factors outside its control
prevented it from recovering lost revenues in 2011. The appeal panel
acknowledged that Claimant had shown that another bridge-building company
had started in 2011, but it noted that Claimant’s documentation was “silent as
to how this competitor prevented the recovery of lost revenues by the
Claimant.” Claimant requested discretionary review, which the district court
declined. Claimant appeals.
                                         II.
        We review the district court’s denial of discretionary review for an abuse
of discretion. Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407,
410 (5th Cir. 2017). The district court abuses its discretion to deny review
when:
        (1) the request for review raises an issue that has split the Appeal
        Panels and would substantially impact the Settlement
        Agreement’s administration once resolved; (2) the dispute
        concerns a pressing question about how to interpret or implement
        the Settlement Agreement’s rules; (3) the Appeal Panel misapplied
        or contradicted the Settlement Agreement, or had the clear
        potential to do so; or (4) 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) (unpublished). But “we have been careful to note that it is ‘wrong to
suggest that the district court must grant review of all claims that raise a
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question about the proper interpretation of the Settlement Agreement.’”
Claimant ID 100110725 v. BP Expl. & Prod., Inc., 689 F. App’x 257, 259 (5th
Cir. 2017) (unpublished) (quoting Holmes Motors, Inc. v. BP Expl. & Prod., Inc.,
829 F.3d 313, 316 (5th Cir. 2016)). “The district court need not review a claim
that raises a non-pressing Settlement Agreement interpretation issue, or that
merely challenges ‘the correctness of a discretionary administrative decision in
the facts of a single claimant’s case.’” Claimant ID 100190818, 718 F. App’x at
222 (quoting Claimant ID 100212278, 848 F.3d at 410).
                                       III.
      Claimant has not shown that the district court abused its discretion by
declining to grant discretionary review. Claimant makes two arguments in
favor of review: (1) the appeal panel misapplied the settlement agreement by
requiring proof that the alleged competitor caused its losses; and (2) appeal
panels are split as to what kind of documentation satisfies the Decline-Only
test. Both arguments are unavailing.
      Considering Claimant’s first argument, Claimant argues that the appeal
panel erroneously engaged in a “detailed, subjective inquir[y]” by requiring
Claimant to show that the competitor prevented the recovery of revenue. The
appeal panel did not, however, engage in any such subjective inquiry. Instead,
it found that Claimant’s documentation did not demonstrate that the
competitor “prevented the [Claimant’s] recovery of lost revenues in 2011”—an
objective inquiry. The appeal panel found that the alleged competitor was one
of many other competitors in the area; in the examples Claimant provided, the
competitor was one of fifteen other businesses participating in the bidding
process. And there was no documentation showing that the alleged competitor
outbid Claimant on any project, a fact Claimant does not dispute on appeal.
The appeal panel’s determination “is not incongruent with the language of the
Settlement Agreement,” Claimant ID 100250022 v. BP Expl. & Prod., Inc., 847
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F.3d 167, 170 (5th Cir. 2017), which plainly requires “[s]pecific documentation
identifying factors outside the control of the claimant that prevented the
recovery of revenues in 2011” (emphasis added). Claimant’s argument
“ultimately turns on ‘the correctness of a discretionary administrative decision
in the facts of a single claimant’s case,’ and does not show that the Panel’s
determination    ‘actually    contradicted   or   misapplied   the    Settlement
Agreement.’” Claimant ID 100110725, 689 F. App’x at 260 (internal citations
omitted) (first quoting In re Deepwater Horizon, 641 F. App’x 405, 410 (5th Cir.
2016) (unpublished), then quoting Holmes, 829 F.3d at 315)). And even if the
appeal panel had misapplied the settlement agreement, Claimant has not
shown   that    this   case   concerns   a   “pressing   Settlement   Agreement
interpretation issue.” See Claimant ID 100190818, 718 F. App’x at 222-23
(quoting Claimant ID 100212278, 848 F.3d at 410). Accordingly, the district
court did not abuse its discretion by denying review on this basis.
      Second, Claimant has not demonstrated a split among appeal panels
necessitating review. The two appeal panel decisions it cites in support of this
argument are not inconsistent with this case. The first decision, 34 APD
2016-2052, is inapt. There, the appeal panel rejected BP’s argument “that a
claimant must demonstrate that the factors in 2011 preventing the recovery of
revenues were somehow worse than similar factors that may have existed in
previous years.” That case asked whether the claimant had shown the
existence of an outside factor, whereas this case considers whether that factor
prevented the recovery of revenues. In the second case, 21 APD 2015-1094, the
appeal panel rejected the argument that a claimant must submit evidence that
the competitor “captured any market share from Claimant.” But there, the
appeal panel found that the opening of nearby competitor furniture stores
meant that customers who had previously been willing to travel to the
claimant’s business to shop for furniture no longer needed to do so, thus
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preventing the claimant’s recovery of revenues. In contrast, Claimant’s
documentation sheds no light on how the entry of a competitor affected its
revenues. Thus, there is no split among appeal panels necessitating the district
court’s review.
                                      IV.
      For the foregoing reasons, we AFFIRM the district court’s decision to
deny discretionary review.




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