     Case: 18-30752       Document: 00514915763         Page: 1    Date Filed: 04/15/2019




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

                                                                           FILED
                                                                         April 15, 2019
                                      No. 18-30752
                                                                        Lyle W. Cayce
                                                                             Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

               Requesting Parties – Appellants,

v.

CLAIMANT ID 100192823,

               Objecting Party – Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-4912


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
       Claimant received an award from BP under the Settlement Agreement
for claims arising from BP’s 2010 oil spill in the Gulf of Mexico. BP asked the
district court—which has retained discretionary jurisdiction over issues
arising from the administration of the Settlement Agreement—to review three
issues pertaining to Claimant’s award. The district court declined to review



       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                 No. 18-30752
the award. Because we conclude that the district court did not abuse its
discretion in withholding review, we AFFIRM.
                                       I.
      This case arises from BP’s 2010 oil spill in the Gulf of Mexico. After the
spill, BP implemented a claims processing system that included a class
settlement for Business Economic Loss Claims.        Under this settlement, a
claimant goes through multiple levels of review after submitting a claim. First,
the Claims Administrator determines whether the claimant is eligible to
participate in the Settlement Class—and, if so, how much the claimant is
entitled to recover. BP and the claimant can appeal that determination to an
Appeal Panel, which in this case is comprised of three members. After that,
BP and the claimant may request review of the Appeal Panel’s decision in the
Eastern District of Louisiana, which retained the right to exercise its
discretionary jurisdiction to review the implementation of the settlement.
Lake Eugenie Land & Dev., Inc. v. BP Expl. & Prod., Inc. (In re Deepwater
Horizon), 632 F. App’x 199, 203 (5th Cir. 2015).
      Claimant is an asphalt paving contractor with headquarters in Naples,
Florida, which is located within the Gulf Coast Areas—the BP Settlement
Agreement’s prescribed geographic zone for claim eligibility.         However,
Claimant owns a mobile asphalt plant that, in 2010, was located in Lake
Placid, Florida—outside the Gulf Coast Areas. Claimant used the mobile plant
to supply hot asphalt to nearby road projects from a temporary location in Lake
Placid.
      On March 6, 2013, Claimant filed a Business Economic Loss Claim with
the Settlement Program. The Claims Administrator reviewed the claim and
awarded Claimant a total of $8,261,516.92. BP appealed, claiming that the
Administrator: (1) failed to exclude revenues and expenses from the mobile
asphalt plant in Lake Placid, which BP claimed was an ineligible, out-of-zone
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“Facility” under the Settlement Agreement; and (2) misclassified a certain
“contract management” expense as a fixed expense.
      On the first issue, the Appeal Panel determined that the Lake Placid
plant was not an out-of-zone “Facility” because all of Claimant’s operations
were managed and performed from its in-zone, Naples, Florida, headquarters.
On the second issue, the Appeal Panel remanded the claim to the Claims
Administrator “for the limited purpose of resolving whether the expense should
be treated as a variable expense or a payroll related cost; and then recalculate
a proper award” accordingly.
      Following remand, this court issued its decision on Policy 495, requiring
that claimant compensation be calculated by using the Annual Variable
Margin (AVM) methodology. Lake Eugenie Land & Dev., Inc. v. BP Expl. &
Prod., Inc. (In re Deepwater Horizon), 858 F.3d 298 (5th Cir. 2017). The Claims
Administrator reprocessed Claimant’s claim according to this methodology,
replacing the “construction” methodology that the Administrator used in the
prior decision.    The Administrator also removed payroll adjustments that
corrected a mismatch between revenues and expenses because it found that
the Profit and Loss Statements (P&Ls) did not contain any errors that required
correction. Claimant’s new award totaled $8,395,050.41.
      BP appealed this new award, arguing that the Administrator: (1) again
failed to exclude revenues and expenses from the Lake Placid Facility;
(2) erroneously failed to correct errors in Claimant’s P&Ls; and (3) failed to
substantiate that certain related-party transactions were at arm’s length. The
Appeal Panel concluded: (1) for the second time, that the Lake Placid plant was
not an ineligible out-of-zone “Facility”; (2) that the Claimant’s P&Ls did not
contain any “errors requiring an adjustment”; and (3) that BP had failed to
provide sufficient evidence that any related-party transactions were not made
at arm’s length.
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      BP sought discretionary review on each of these issues, which the district
court denied. BP timely appealed.
                                        II.
      This court reviews the district court’s denial of discretionary review for
an abuse of discretion. Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d
313, 315 (5th Cir. 2016). “We generally assess whether the district court
abused its discretion by looking to ‘whether the decision not reviewed by the
district court actually contradicted or misapplied the Settlement Agreement,
or had the clear potential to contradiction or misapply the Settlement
Agreement.’” Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407,
410 (5th Cir. 2017) (quoting Holmes Motors, 829 F.3d at 315). But the district
court need not “grant review of all claims that raise a question about the proper
interpretation of the Settlement Agreement.’” Id. The district court does not
abuse its discretion when it denies a request for review that “involve[s] no
pressing question of how the Settlement Agreement should be interpreted or
implemented, but simply raise[s] the correctness of a discretionary
administrative decision in the facts of a single claimant’s case.” Id. (alterations
in original) (quoting In re Deepwater Horizon, 641 F. App’x 405, 410 (5th Cir.
2016)). On the other hand, it “may be an abuse of discretion to deny a request
for review that raises a recurring issue on which the Appeal Panels are split if
‘the resolution of the question will substantially impact the administration of
the Agreement.’” Id. (quoting In re Deepwater Horizon, 632 F. App’x at 203–
04 (5th Cir. 2015)).
                                       III.
      BP argues first that the Administrator incorrectly included revenues and
expenses from Claimant’s mobile asphalt plant in Lake Placid, which BP says
is an ineligible out-of-zone “Facility” under the Settlement Agreement. Under
the Settlement Agreement, “Facilities” outside the designated Gulf Coast
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Areas are excluded from the claim calculation. See Policy 467. Policy 467
defines a Facility as: (a) a separate and distinct physical structure or premises;
(b) owned, leased, or operated by the Business Entity; (c) at which the Business
Entity performs and/or manages its operations.
      Thus, a “Facility” must be a “physical structure or premises.” Policy 467
provides “[e]xamples of [w]hat [c]onstitutes a [f]acility for [s]pecific [c]ategories
of [e]ntities.” For “[v]ehicles and [o]ther [m]obile [m]achines”:
      Each of the following is not a Facility because it is not a physical
      structure: (a) an automobile, truck, bus or other vehicle; (b) a
      mobile home or other recreational vehicle; (c) an airplane,
      helicopter, balloon, or other aerial device; (d) a crane, bulldozer or
      other equipment.
      In the instant case, the Appeal Panel concluded that the asphalt plant
was not a separate, out-of-zone facility in part because it was mobile. The
Appeal Panel had ample evidence for this conclusion.                 As part of a
comprehensive review of Claimant’s business—a review that considered
multiple sets of P&Ls, professionally prepared claim calculations, and specific
inquiries into certain aspects of Claimant’s business—the Administrator asked
Claimant about potential separate facilities and the company’s asphalt plants.
Claimant’s attorney explained that all of Claimant’s asphalt plants were
mobile; they were towed to a location—like Lake Placid—and then used to
supply hot asphalt to nearby road projects. When not in use, the asphalt plants
were stored in Claimant’s in-zone Naples yard. Based in part on this evidence,
the Appeal Panel concluded that Claimant was not operating or managing an
out-of-zone facility.
      Because Policy 467 expressly excludes vehicles and equipment from the
definition of “Facility” and the Appeal Panel had ample evidence to conclude
that the asphalt plant was mobile, BP has failed to demonstrate that this
decision “actually contradicted or misapplied the Settlement Agreement or had

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                                  No. 18-30752
the clear potential” to do so.     Claimant ID 100212278, 848 F.3d at 410.
Moreover, even if BP had established that the Appeal Panel’s decision
contradicted or misapplied the Settlement Agreement, this issue “simply
raise[s] the correctness of a discretionary administrative decision to the facts
of a single claimant’s case.” Id. BP has not shown a “recurring issue on which
the Appeal Panels are split.” Id. The district court thus did not abuse its
discretion in declining to review this issue.
                                       IV.
       BP also argues that the district court erred by declining to review the
Appeal Panel’s determination that Claimant’s P&Ls were correctly stated and
did not contain any errors that required further correction. Specifically, BP
argues that the Administrator should have corrected year-end negative
expenses—which Claimant used on its P&Ls to correct expense estimates
made in prior months of the year that turned out to be too high—to reflect
realistic monthly amounts for those expenses. The Appeal Panel, however,
applied the required AVM methodology, reviewed the record before it, and
concluded that the P&Ls contained no error that required correction. BP
simply disputes the conclusion under that methodology, a fact-bound
determination that the district court is not required to review. Claimant ID
100212278, 848 F.3d at 410. BP has not shown a split between Appeal Panels.
Id.   BP “simply raise[s] the correctness of a discretionary administrative
decision to the facts of a single claimant’s case.” Id. Accordingly, we hold that
the district court did not abuse its discretion in declining to review this issue.
                                        V.
       Policy 328 excludes from revenue “related[-]party transactions that are
not [arm’s] length transactions.” BP argues that the Administrator failed to
sufficiently investigate whether some of Claimant’s transactions with a certain


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                                 No. 18-30752
company were not at arm’s length. Accordingly, BP argues, the district court
erred in declining to review the issue.
      We disagree. We have held that the issue of whether particular related-
party transactions were at arm’s length is a claim-specific determination that
generally turns on the facts of each case. Claimant ID 100190818 v. BP Expl.
& Prod., Inc., 718 F. App’x 220 (5th Cir. 2018). Different rulings on this
question often result simply from different facts.        The instant case is no
exception. BP has not demonstrated a “recurring issue on which Appeal Panels
are split.” Claimant ID 100212278, 848 F.3d at 410. To the contrary, the
Appeal Panels have been consistent: a separate Appeal Panel rejected this
same argument when BP raised it against the very related party at issue here.
The Appeal Panels have thus treated identical facts identically. Accordingly,
we conclude that the district court did not abuse its discretion in declining to
review this issue.
                                      VI.
      The district court did not abuse its discretion in declining to review the
claim. Accordingly, we AFFIRM.




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