     Case: 14-30398   Document: 00512745515    Page: 1   Date Filed: 08/25/2014




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

                                                                       FILED
                                                                    August 25, 2014
                               No. 14-30398
                                                                    Lyle W. Cayce
                                                                         Clerk
IN RE: DEEPWATER HORIZON
-------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,

                                        Plaintiffs,
v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, p.l.c.,

                                        Defendants – Appellees,
v.

ROCON, INCORPORATED,

                                        Movant – Appellant


                              ______________

                               No. 14-30400
                              ______________

IN RE: DEEPWATER HORIZON
-------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,

                                        Plaintiffs,
v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, p.l.c.,
     Case: 14-30398      Document: 00512745515         Page: 2    Date Filed: 08/25/2014



                               Nos. 14-30398, 14-30400


                                                  Defendants – Appellees,
v.

BENNY WHITEHEAD, INCORPORATED,

                                                  Movant – Appellant


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:10-MD-2179


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Whitehead and Rocon appeal two orders issued by the district court on
March 26, 2014. BP has filed motions to dismiss these appeals for lack of
jurisdiction. As explained below, we grant both of BP’s motions to dismiss on
identical grounds.
                                             I.
       Whitehead and Rocon are claimants in the court-supervised settlement
program described in In re Deepwater Horizon, 732 F.3d 326, 329 (5th Cir.
2013).     Both claimants received awards of compensation from the Claims
Administrator.      Both claimants’ awards were upheld by the settlement
program’s Appeal Panel 1 prior to October 2, 2013, when this court ordered a
temporary injunction against processing certain claims under the settlement




       * 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.
       1See Whitehead’s Notice of Appeal Panel Decision (Rec. Doc. 12556-13); Rocon’s Notice
of Appeal Panel Decision (Rec. Doc. 12103-13).
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                               Nos. 14-30398, 14-30400
program. 2 As a consequence of this court’s injunction, the claimants’ awards
of compensation had not been paid as of March 2014, 3 and apparently still have
not yet been paid.
       Seeking payment of their awards, Whitehead and Rocon both filed
motions under the Federal Arbitration Act (“FAA”), codified at 9 U.S.C. § 9,
styled as “Motion[s] to Confirm Arbitration Award and Order Payment.” The
district court denied these motions in a pair of one-page orders on March 26,
2014. 4 As the district court explained, “the . . . injunction relating to BEL
claims remains in place. . . . At such time as the mandate issues, the Claims
Administrator will process BEL claims in accord with the decisions of the Fifth
Circuit.” 5 The district court did not address the merits of either motion or
make any reference to the FAA.
       Whitehead and Rocon appealed under 9 U.S.C. § 16, and continue to
pursue their appeals even though the temporary injunction was dissolved on
May 28, 2014. 6 Neither Whitehead nor Rocon appear to have sought any
further relief from the district court or the Claims Administrator. On August
1, 2014, BP filed motions to dismiss both appeals.
                                            II.
       This court’s appellate jurisdiction is a threshold question that may be
addressed sua sponte or on motion. 7 As the Supreme Court explained in
Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 628 (2009) (internal quotation



       2  See Deepwater Horizon, 732 F.3d at 345-46.
       3  The injunction was left undisturbed in In re Deepwater Horizon, 744 F.3d 370, 378
(5th Cir. 2014), which was decided on March 3, 2014. This was the last decision by our court
affecting this case prior to the district court’s orders on March 26, 2014.
        4 See Order Denying Whitehead’s Motion (Rec. Doc. 12594); Order Denying Rocon’s

Motion (Rec. Doc. 12598).
        5 See Order Denying Whitehead’s Motion (Rec. Doc. 12594).
        6 See In re Deepwater Horizon, 753 F.3d 509, 511 (5th Cir. 2014).
        7 Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999).

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                                 Nos. 14-30398, 14-30400
marks and citation omitted), jurisdiction over an appeal “must be determined
by focusing upon the category of order appealed from, rather than upon the
strength of the grounds for reversing the order.”             In an appeal brought
specifically under 9 U.S.C. § 16, the FAA’s provisions for appellate jurisdiction
“unambiguously make[] the underlying merits irrelevant” even where the
appellant’s arguments on the merits demonstrate “utter frivolousness.” 8
      We therefore address only the jurisdictional question and take no
position regarding the parties’ arguments on the merits.             We express no
opinion as to whether the settlement agreement includes an arbitration clause,
whether the Claims Administrator’s awards of compensation constitute
arbitral awards governed by the FAA, or whether BP is estopped from
contesting either proposition.
      In response to BP’s motions to dismiss, Whitehead and Rocon propose
two possible grounds for this court’s appellate jurisdiction under the FAA.
First, Whitehead and Rocon argue that the district court’s orders of March 26,
2014, constituted orders “denying confirmation of an award,” which are subject
to appeal under 9 U.S.C. § 16(a)(1)(D). This argument must be rejected. As
the Supreme Court explained in Hall St. Associates, L.L.C. v. Mattel, Inc., 552
U.S. 576, 582 (2008), “[u]nder the terms of § 9, a court ‘must’ confirm an
arbitration award ‘unless’ it is vacated, modified, or corrected ‘as prescribed’ in
§§ 10 and 11.” It therefore follows logically that a district court’s order does
not constitute an appealable order “denying confirmation” under 9 U.S.C. §
16(a)(1)(D) unless the order vacates, modifies, or corrects the arbitral award.
This was precisely the reasoning applied in our recent decision in Murchison
Capital Partners, L.P. v. Nuance Commc’ns, Inc., ___ F.3d ___, 2014 WL
3703868 (5th Cir. July 25, 2014), in which we granted a motion to dismiss for


      8   Carlisle, 556 U.S. at 628.
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                               Nos. 14-30398, 14-30400
lack of jurisdiction. In Murchison, 2014 WL 3703868, at *5, because “the
district court neither confirmed nor vacated the arbitration award,” but
instead remanded the case to the original arbitral tribunal “for further
clarification,” we concluded that we lacked jurisdiction to hear the appeal
under 9 U.S.C. § 16(a)(1)(D). 9
       A similar situation is presented in this case. The district court’s two
orders neither mentioned the FAA nor purported to vacate, modify, or correct
the Claims Administrator’s awards of compensation. Nor did the district court
consider any of the enumerated grounds for declining to confirm an arbitral
award under 9 U.S.C. § 10 or § 11. Nor did the district court indicate more
generally that the motions filed by Whitehead and Rocon were denied with
prejudice. On the contrary, the district court merely explained that it could
provide no relief while this court’s temporary injunction in Deepwater Horizon,
732 F.3d at 345-46, remained in place. Therefore, because the district court’s
orders neither confirmed nor denied confirmation of a purported arbitral
award, we lack any basis for jurisdiction over these appeals under 9 U.S.C. §
16(a)(1)(D).
       Second, Whitehead and Rocon argue that the district court’s orders of
March 26, 2014, constituted “interlocutory order[s] . . . continuing . . . an
injunction against an arbitration that is subject to this title” under 9 U.S.C. §



       9 See also Government of The Virgin Islands v. Lansdale, 307 F. App’x 688, 692 (3d
Cir. 2009) (concluding that a district court’s order was “not appealable under § 16(a)(1)(D)”
where “the District Court declined to confirm or vacate the Interim Award”); Alexander Binzel
Corp. v. Nu-Tecsys Corp., 99 F.3d 1142 (7th Cir. 1996) (same). As Murchison explained, an
order remanding to the same arbitral tribunal for clarification must be distinguished from
an order “vacating an arbitration award and remanding the case to a different arbitration
panel for an entirely new hearing,” such as this court considered in Forsythe Int’l, S.A. v.
Gibbs Oil Co. of Texas, 915 F.2d 1017 (5th Cir. 1990). See Murchison, 2014 WL 3703868, at
*3 (“[H]ad the district court remanded to the same arbitration panel for clarification of its
award, the policies disfavoring partial resolution by arbitration would preclude appellate
intrusion until the arbitration was complete.” (quoting Forsythe, 915 F.2d at 1020 n.1)).
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                                Nos. 14-30398, 14-30400
16(a)(2). This argument must also be rejected based on the terms of that
provision, which have a “well-established meaning” illuminated by the case
law analyzing the nearly identical language of 28 U.S.C. § 1292(a)(1). 10 As the
First, 11 Second, 12 Ninth, 13 and Federal Circuits have all held, “an order that
‘continues’ an injunction . . . is an order that extends the duration of the
injunction that would otherwise have dissolved by its own terms.” 14 But where
an order does “not prolong, extend, or in any other way impact the duration of
the . . . injunction,” that order “cannot be characterized as ‘continuing’ the . . .
injunction” and therefore is not appealable. 15
       In the present case, the district court’s orders of March 26, 2014, did not
prolong, extend, or in any other way impact the duration of the injunction
ordered by this court on October 2, 2013, in Deepwater Horizon, 732 F.3d at
345-46. The district court’s orders simply explained the effects of that pre-
existing injunction. As we held in Frazar v. Hawkins, 376 F.3d 444, 447 (5th
Cir. 2004) (quoting Ingram Towing Co., 59 F.3d 513, 516 (5th Cir. 1995)), an
order that merely “enforces or interprets a previous injunction” does not give
rise to interlocutory appellate jurisdiction under 28 U.S.C. § 1292(a)(1).
Neither Whitehead nor Rocon identify any reason that the result should be
different under the nearly identical language of 9 U.S.C. § 16(a)(2).
       Accordingly, interpreting the terms of the FAA’s jurisdictional provisions


       10 See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86 (2000) (“Because
the FAA does not define [a certain term under 9 U.S.C. § 16] or otherwise suggest that the
ordinary meaning of [this term] should not apply, we accord the term its well-established
meaning.”).
       11 Sierra Club v. Marsh, 907 F.2d 210, 213-14 (1st Cir. 1990).
       12 In re Fugazy Exp., Inc., 982 F.2d 769, 777 (2d Cir. 1992).
       13 United States v. Oakland Cannabis Buyers’ Coop., 190 F.3d 1109, 1112 (9th Cir.

1999), rev’d on other grounds by United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S.
483 (2001).
       14 See Entegris, Inc. v. Pall Corp., 490 F.3d 1340, 1345 (Fed. Cir. 2007) (citation and

internal quotation marks omitted).
       15 Id. (interpreting and applying 28 U.S.C. § 1292(a)(1)).

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                                 Nos. 14-30398, 14-30400
in light of their well-established meaning, 16 we conclude that the district
court’s orders did not “continu[e]” any injunction within the meaning of 9
U.S.C. § 16(a)(2). We therefore have no interlocutory jurisdiction over these
appeals.
                                             III.
      For the reasons set forth above, we lack jurisdiction under either 9 U.S.C.
§ 16(a)(1)(D) or § 16(a)(2). We therefore grant BP’s motions to DISMISS these
appeals in their entirety.
      DISMISSED.




      16   See Green Tree, 531 U.S. at 86.
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