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

                                                                        FILED
                                No. 12-30883                      January 9, 2015
                                                                    Lyle W. Cayce
IN RE: DEEPWATER HORIZON                                                 Clerk
_____________________________________________________

UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee
v.

B.P. EXPLORATION & PRODUCTION, INCORPORATED; ANADARKO
PETROLEUM CORPORATION,

                                          Defendants - Appellants




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


                ON PETITION FOR REHEARING EN BANC
                    (Opinion June 4, 2014, 753 F.3d 570)


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition
for Rehearing En Banc is DENIED. Judge Clement, joined by Judges Jolly,
                                      No. 12-30883
Jones, Owen, Elrod, and Southwick, dissents from the court's denial of
rehearing en banc, and her dissent is attached.
       In the en banc poll, 6 judges voted in favor of rehearing (Judges Jolly,
Jones, Clement, Owen, Elrod and Southwick) and 7 judges voted against
rehearing (Chief Judge Stewart and Judges Davis, Dennis, Prado, Haynes,
Graves, and Costa). *


ENTERED FOR THE COURT:




UNITED STATES CIRCUIT JUDGE




       * Judges Smith and Higginson are recused and did not participate in the consideration
of the petition.
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EDITH BROWN CLEMENT, Circuit Judge, with whom JOLLY, JONES,
OWEN, ELROD, and SOUTHWICK, Circuit Judges, join, dissenting from
Denial of Rehearing En Banc.


      The denial of the petition for rehearing en banc ensures that our
precedent concerning liability for oil spills under the Clean Water Act remains
unclear. The panel opinion’s “controlled confinement” test does not follow from
the text of the CWA. Compounding this, the panel’s supplementary opinion
conflicts with the panel opinion. These problems, coupled with the exceptional
importance of the underlying issue, necessitated a rehearing.             Hence, I
respectfully dissent.
      The CWA makes liable the “owner, operator, or person in charge of any
vessel . . . or offshore facility from which oil . . . is discharged” into navigable
waters. 33 U.S.C. § 1321(b)(7)(A). Discharge is defined as “spilling, leaking,
pumping, pouring, emitting, emptying or dumping.” 33 U.S.C. § 1321(a)(2).
The panel opinion, in turn, defines discharge as “the loss of controlled
confinement.”    I believe that this “loss of controlled confinement” test is
inconsistent with the text of the CWA.        A rehearing en banc would have
allowed us to consider more faithful interpretations of the Act.
      Further, the panel’s issuance of a supplemental opinion to clarify its first
CWA interpretation suggests that the panel perceived an ambiguity in the
CWA. This is concerning because a clear line of precedent exists holding that
ambiguities in civil-penalty statues should be resolved in favor of the
defendant.   See, e.g., Comm’r. v. Acker, 361 U.S. 87, 91 (1959); Diamond
Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645,
649 (5th Cir. 1976).
      Having created this “controlled confinement” test, the panel opinion
misapplies it. The panel opinion holds that confinement was lost in the Well
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when hydrocarbons moved from the formation into the Well. The panel reaches
this conclusion despite the fact that the hydrocarbons then traveled through
the blowout preventer and riser before entering the Gulf of Mexico. More
significantly, the panel reaches its holding despite its contradictory finding
that the Well—which was not designed to confine hydrocarbons—never
confined the hydrocarbons at all. The panel opinion and supplementary
opinion fail to reconcile the holding that controlled confinement was lost in the
well with the finding that hydrocarbons were never confined in the well. This
too should have been considered en banc.
        Lastly, in its supplemental opinion, the panel changes the holding of the
panel opinion. Thus, the law in our circuit is left unclear. The supplemental
opinion attempts to overcome the fact that there was never confinement in the
well.    In the process, however, the supplementary opinion suggests that
discharge is not defined as a loss of controlled confinement—as the panel
opinion holds—but an absence of controlled confinement. This is no abstruse,
metaphysical distinction. An absence of confinement test is not only further
from the text of the CWA, it implicates a significantly broader swath of
potentially liable actors. Further, the district courts are now left to harmonize
this discord. I suspect that, as a consequence, we will be faced with addressing
this issue again. We should have seized the opportunity now.




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