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

                                                                             FILED
                                                                         February 8, 2019
                                      No. 18-30331
                                                                          Lyle W. Cayce
                                                                               Clerk

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

               Requesting Parties - Appellants

v.

CLAIMANT ID 100185315,

               Objecting Party - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-439


Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Appellants BP Exploration & Production, Inc., BP America Production
Company, and BP, P.L.C. (collectively “BP”) challenge the classification as
fixed of one of the claimant-appellee’s expenses, a “Management Fee,” which
had the effect in this case of increasing the amount of appellee’s claim. The
classification of expenses as “fixed” or “variable” is governed by the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30331
Compensation Framework for Business Economic Loss Claims (“BEL
Framework”) in the Deepwater Horizon Economic and Property Damages
Settlement Agreement (“Settlement Agreement”). 1 If an expense is classified
as fixed, it does not reduce profit; if it is classified as variable, it reduces profit,
which can significantly alter the amount of the claim. The “Management Fee”
at issue is a percentage of the claimant’s revenue that it was obligated to pay
its parent company to cover corporate overhead expenses. The administrative
appeal panel agreed with the claimant’s argument that this expense was
properly classified as a fixed cost and rejected BP’s argument that it was a
variable cost. The district court denied BP’s request for discretionary review.
       We review the district court’s denial of discretionary review for abuse of
discretion. 2 The district court abuses its discretion if an appeal panel decision
not reviewed by the district court contradicted or misapplied the Settlement
Agreement or had the clear potential to do so. 3
       Under the BEL Framework, a claimant is compensated for any reduction
in Variable Profit between the 2010 Compensation Period and a Benchmark
Period of comparable months before the spill. 4 Variable Profit is defined as the
sum of monthly revenue over the relevant period minus variable (but not fixed)
expenses over the same period. 5 Thus, whether a cost is defined as “variable”
(and reduces Variable Profit calculations) or “fixed” (and is excluded from such
calculations) can significantly alter the size of an award. An attachment to the




       1  Economic and Property Damages Settlement Agreement, Compensation Framework
for Business Economic Loss Claims (Exhibit 4C).
        2 BP Expl. & Prod., Inc. v. Claimant ID 100094497, 910 F.3d 797, 800 (5th Cir. 2018)

(citation omitted).
        3 Id. (citation omitted).
        4 Economic and Property Damages Settlement Agreement, Compensation Framework

for Business Economic Loss Claims (Exhibit 4C).
        5 Id. at 2.

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BEL Framework includes lists of fixed and variable costs. 6 The list includes
“fees” as a fixed cost.
       The claimant in this case followed the guidance provided by this list and
treated its “Management Fee” as a fixed cost, which does not reduce Variable
Profit. BP argues that the fee is a variable cost because the fee increases or
decreases depending on the dollar amount of the claimant’s revenue.
       Another panel of this court recently addressed the issue raised in this
case. 7 In that opinion, the panel noted that the distinction between fixed and
variable costs “utilize[s] the customary understanding of cost allocation in the
accounting business” and established the following definitions:
       A “variable cost” is a business expense that “will vary in direct
       proportion to changes in the level of [a business] activity. For
       example, direct material, direct labor, sales commissions, fuel cost
       for a trucking company, and so on, may be expected to increase
       with each additional unit of output. . . . The opposite of variable
       costs are fixed costs. Fixed costs do not fluctuate with changes in
       the level of activity.” 8
      The prior panel faced the question whether supplies, such as bags in
which the claimant packed shrimp, were a fixed or variable cost of the
claimant, a company that froze, packed, and arranged for delivery of shrimp
for gulf shrimpers. 9 Like “fees,” “supplies” are listed as a fixed cost in the BEL
Framework’s attachment. 10 The claimant in that case classified the bags and




      6  Economic and Property Damages Settlement Agreement, Compensation Framework
for Business Economic Loss Claims, Attachment A (Exhibit 4D).
       7 Claimant ID 100094497, 910 F.3d 797.
       8 Id. at 802 & n.2 (second and third alterations in original) (quoting LARRY WALTHER

& CHRISTOPHER SKOUSEN, MANAGERIAL AND COST ACCOUNTING 37-38 (2009)).
       9 Id. at 799.
       10  Economic and Property Damages Settlement Agreement, Compensation
Framework for Business Economic Loss Claims, Attachment A (Exhibit 4D).
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related items as supplies (a fixed cost), while BP claimed they were properly
categorized as a variable cost, such as consumable goods. 11
      The administrative appeal panel classified the expense as fixed,
deferring to the claimant’s rational basis for classifying the bags and related
items as “supplies” (which the BEL Framework’s attachment deems a fixed
cost). 12 On appeal to this court, the panel vacated and remanded, holding that:
      [T]he Settlement Agreement requires claims administrators to use
      their independent judgment and classify expenses as “fixed” or
      “variable” according to their substantive nature, rather than
      rational basis review of the claimants’ own descriptions. Appeal
      Panels, too, are bound by the substantive nature of the expense
      claims under the Settlement Agreement rather than the claimants’
      inaccurate characterizations. 13
      This court found that the administrative appeal panel misapplied the
Settlement Agreement because it should have classified the expense according
to its substantive nature, rather than deferring to the claimant’s
characterization. 14 The court found that the district court erred in failing to
review and correct the error of law. 15
      In this case, the administrative appeal panel agreed with the claimant’s
argument that its Management Fee expense was properly classified as a fixed
cost because “fees” are included as a fixed cost in the BEL Framework’s
attachment. The appeal panel did not address the substantive nature of the
expense, including whether fluctuations in revenue (which directly affected the
fees owed) were attributable to fluctuations in output or some other cause, such
as a change in the price for each unit.




      11 See Claimant ID 100094497, 910 F.3d at 799, 801.
      12 See id. at 799-800.
      13 Id. at 802-03.
      14 See id. at 800-03.
      15 Id. at 803.

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      For the reasons given by the prior panel, we conclude that the appeal
panel’s decision here, by focusing on the label given to the expense (“fees”),
rather than its substantive nature, misapplied the Settlement Agreement, and
the district court erred in failing to review and correct this error of law.
Regardless of the labels the parties place on an expense, the prior panel’s
opinion directs the appeal panel to focus its inquiry on the substantive nature
of the expense, i.e. whether or not it fluctuates in proportion to changes in the
claimant’s output.
      This case is controlled by the prior panel’s case, and we therefore remand
to the district court to determine whether these fees, based on their substantive
nature, are fixed or variable, or to remand to the appeal panel for any further
development necessary to that determination.
      We VACATE and REMAND for further proceedings consistent with this
opinion.




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