     Case: 18-30748   Document: 00514816158   Page: 1   Date Filed: 01/30/2019




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

                               No. 18-30748                         FILED
                             Summary Calendar                 January 30, 2019
                                                               Lyle W. Cayce
                                                                    Clerk
CLAIMANT ID 100297067,

             Requesting Party - Appellant

v.

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

             Objecting Parties - Appellees

****************************************************
CLAIMANT ID 100298282,

             Requesting Party - Appellant

v.

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

             Objecting Parties - Appellees

****************************************************
CLAIMANT ID 100297071,

             Requesting Party - Appellant

v.

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

             Objecting Parties - Appellees
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                                No. 18-30748


****************************************************
CLAIMANT ID 100298024,

             Requesting Party - Appellant

v.

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

             Objecting Parties - Appellees

****************************************************
CLAIMANT ID 100297080,

             Requesting Party - Appellant

v.

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

             Objecting Parties - Appellees

****************************************************
CLAIMANT ID 100297075,

             Requesting Party - Appellant

v.


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

             Objecting Parties – Appellees




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                                      No. 18-30748
****************************************************
CLAIMANT ID 100297077,

              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


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       This consolidated appeal challenges the classification of four properties
in coastal Louisiana under the framework for wetlands claims in the
Deepwater Horizon Economic and Property Damages Settlement Agreement
(“Settlement Agreement”). The claimant-appellants argue that the district
court should have classified their parcels as oiled and compensated the
claimants at the higher rate for oiled parcels, rather than the lower rate
applicable to non-oiled parcels. While the claimants seem to acknowledge that
their parcels were not, in fact, oiled, they argue that they are nonetheless
entitled to compensation at the higher rate because their parcels should have
been lumped with an adjacent, oiled parcel for classification and compensation


       * 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.

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                                       No. 18-30748
purposes. As discussed below, we conclude that the district court did not err
in its classification of the parcels at issue. We therefore AFFIRM.
                                              I.
       In the wake of the April 2010 Deepwater Horizon 1 oil spill in the Gulf of
Mexico, BP entered into the court-supervised Settlement Agreement with a
class of plaintiffs who suffered economic and property damage because of the
spill. 2 Under the terms of the Settlement Agreement, a claimant submits its
claim to the Court Supervised Settlement Program’s (“Program”) Claims
Administrator,      who     determines      the    claim’s    validity. 3     The     claims
administrator’s decision is subject to review by an Appeal Panel. 4 A claimant
who is unsatisfied with the Appeal Panel’s decision may then request
discretionary review by the federal district court supervising the settlement
program. 5 The claimant may appeal the district court’s judgment to this
court. 6
                                             II.
       The Settlement Agreement provides for compensation to landowners
within the Wetlands Real Property Claim Zone (“Claim Zone”), which


       1 Prior decisions describe the Deepwater Horizon disaster and explain the origins of
the Court Supervised Settlement Program and the Settlement Agreement. See, e.g., In re Oil
Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex., on Apr. 20, 2010, 910 F. Supp. 2d 891
(E.D. La. 2012), aff’d sub nom. In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014).
       2 See In re Deepwater Horizon, 785 F.3d 986, 989 (5th Cir. 2015).
       3 See id.
       4 See id.
       5 See id. at 989-90.
       6 Claimant ID 100196090 v. BP Expl. & Prod., Inc., No. 18-30137, 2018 WL 6600969,

at *1 (5th Cir. Dec. 13, 2018); see Rules Governing Discretionary Court Review of Appeal
Determinations, DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC & PROPERTY DAMAGE
CLAIMS, 6 (2015), http://www.deepwaterhorizoneconomicsettlement.com/docs/15643-
combined.pdf (“The only avenue for relief after Order and/or Judgment on Request for
Discretionary Court Review is entered is appeal to the United States Court of Appeals for the
Fifth Circuit.”). While our unpublished opinions are not controlling precedent, they may be
persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation
omitted).
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encompasses coastal Louisiana. 7        Under Exhibit 12A to the Settlement
Agreement, the Compensation Framework for Wetlands Real Property Claims
(“Framework”), all parcels within the Claim Zone are eligible for compensation,
but the compensation amount is determined by whether a parcel is oiled. 8
Eligible parcels (those within the Claim Zone) are placed into one of two
Compensation Categories. 9 Compensation Category A includes “those Eligible
Parcels that were documented as containing the presence of oil by one or more
of” four assessments listed in the Framework. 10 One of those assessments,
relevant to this appeal, is the published reports of the Deepwater Horizon
Unified Command Shoreline Cleanup Assessment Technique (“SCAT”)
teams. 11 Compensation Category B includes “those Eligible Parcels that were
never documented as containing the presence of oil by any of the”
assessments. 12
      To screen claims, an online portal uses a parcel database containing
information on parcel boundaries and whether parcels were documented as
containing the presence of oil. 13 This database is maintained by the Claims
Administrator, who is instructed by the Framework to “apply the appropriate
Compensation Category for each Eligible Parcel based upon the information in
the Administrator’s Database.” 14 The Framework states that this database “is
presumed to be the best available evidence” of parcel boundaries and the




      7  See In re Deepwater Horizon, 814 F.3d 748, 750 (5th Cir. 2016) (per curiam).
      8  Id.
       9 Economic and Property Damages Settlement Agreement, Compensation Framework

for Wetlands Real Property Claims (Exhibit 12A) at 1.
       10 Id.
       11 Id.
       12 Id.
       13 See In re Deepwater Horizon, 814 F.3d at 750.
       14   Economic and Property Damages Settlement Agreement, Compensation
Framework for Wetlands Real Property Claims (Exhibit 12A) at 3.
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assessments of parcel oiling. 15 Under the Framework, the presumption in
favor of the database can be rebutted, and a Compensation Category B (non-
oiled) parcel reclassified as a Compensation Category A (oiled) parcel, if the
claimant provides independent documentation showing that the parcel
contained the presence of oil. 16
       The Framework also refers to the Eligible Parcel Compensation
Category Map (“Compensation Category Map”), which is attached as Appendix
C to the Framework. 17 The Framework notes that this “map classif[ies] each
known Eligible Parcel into a Compensation Category by applying the
information in the Administrator’s Database as of the settlement date.” 18
       In September 2013, the Claims Administrator adopted a policy—“Policy
443”—to address how wetlands claim compensation amounts should be
allocated in the event that a parish consolidates multiple real property tracts
or lots owned by a claimant into a single tax assessment ID. 19 The policy



       15  See id.
       16  See id. at 3, 5.
        17 Id. at 3; Economic and Property Damages Settlement Agreement, Appendix C to

Compensation Framework for Wetlands Real Property Claims: Eligible Parcel Compensation
Category Map.
        18  Economic and Property Damages Settlement Agreement, Compensation
Framework for Wetlands Real Property Claims (Exhibit 12A) at 3.
        19 Claims Administrator’s Approved Policy 443: Compensating Individual Parcels

Aggregated Under a Single Tax Assessment ID, DEEPWATER HORIZON CLAIMS CENTER:
ECONOMIC & PROPERTY DAMAGE CLAIMS (2013), https://www2.deepwaterhorizoneconomic
settlement.com/un-secure/pkpolicysearch.aspx (search Policy ID field for “443” and click
“Create PDF”); Final Policy Announcement, Policy 443: Wetlands Real Property Claims:
Compensating Individual Parcels Aggregated Under a Single Tax Assessment ID,
https://www2.deepwaterhorizoneconomicsettlement.com/un-secure/pkpolicysearch.aspx
(search Policy ID field for “443” and click “View”). This policy is categorized as a “Claims
Administrator Decision,” which indicates that Class Counsel and/or BP did not formally
agree to it, but indicated that the Claims Administrator was to use it in the Program. Policy
Keeper Portal: User Manual, DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC & PROPERTY
DAMAGE             CLAIMS,         https://www2.deepwaterhorizoneconomicsettlement.com/un-
secure/Docs/Public_Policy_Keeper_Portal_User_Manual.pdf. It seems to be undisputed that
the four lots at issue, and their neighboring Lot 5, are assessed under a single tax assessment
ID, triggering the application of Policy 443.
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provides, in relevant part: “In these situations, the Claims Administrator will
update      the   Claims     Administrator’s        Database      to   include     separate
Compensation Amounts for each lot or tract, rather than an aggregate
Compensation Amount for all lots or tracts combined under one Tax
Assessment ID.” 20
                                             III.
       In December 2016, Claimant ID 100298282 submitted Wetlands Real
Property Claim ID 439053 for one of the subject parcels, Lot 3. 21 The Program
forwarded the claim to its mapping experts. After their review, the Program
classified the parcel as a Compensation Category B non-oiled tract. Upon the
claimant’s request for Re-Review, 22 the mapping experts reviewed the parcel’s
boundaries and the SCAT line and again found that the parcel should be
classified as Compensation Category B. On Reconsideration, 23 the Program
determined that the Claimant had not submitted documentation sufficient to
change the parcel’s Compensation Category.
       The Claimant next filed an appeal with the Appeal Panel, which
requested a Summary of Review 24 from the Program to explain 1) the shading



       20   Final Policy Announcement, Policy 443: Wetlands Real Property Claims:
Compensating Individual Parcels Aggregated Under a Single Tax Assessment ID,
https://www2.deepwaterhorizoneconomicsettlement.com/un-secure/pkpolicysearch.aspx
(search Policy ID field for “443” and click “View”).
        21 The parties’ arguments concentrate on Lot 3 because the district court adopted the

reasons given by the Appeal Panel and the Claims Administrator in that case. We
accordingly focus our analysis on that lot, though our conclusions apply equally to all of the
parcels at issue in this consolidated appeal.
        22 Re-Review by the Program is available to claimants who have additional documents

to submit in support of their claims.
        23 Reconsideration by the Program is available to claimants who believe that the

Program failed to take relevant information or data into account or failed to follow the
Settlement Agreement’s standards.
        24 “The Summary of Review is intended to provide the Appeal Panel member with an

understanding of what occurred in the underlying processing of the claim, including the basis
for the determination(s) made by the Claims Administrator.” Appeal Panel Procedures,
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on the Compensation Category Map and 2) whether the parcel was located
within Compensation Category A. In the Summary of Review, the Claims
Administrator explained that the colors in the legend of the Compensation
Category Map were inadvertently flipped, but he also noted that the map had
been included only “as a reference guide and non-controlling resource.” As to
the categorization of the subject parcel, the Summary of Review stated that
the Program had once again reviewed the parcel’s location and the SCAT
information and had again concluded that the parcel was correctly classified
as Compensation Category B in the database. The Appeal Panel agreed that
the parcel was correctly classified as Compensation Category B.
      The claimants petitioned the district court for discretionary review of
their claims, including Claim ID 439053 for Lot 3. The district court granted
review and affirmed the Appeal Panels’ decisions, finding that the subject
parcels were properly classified as Compensation Category B for the reasons
given by the Appeal Panel and the Claims Administrator in Claim ID 439053.
      The claimants timely filed this consolidated appeal challenging the
district court’s judgments. The claimants argue that their parcels (Lots 1
through 4) should have been classified as Compensation Category A (entitling
them to compensation at the higher, oiled rate) because the Compensation
Category Map allegedly labeled their parcels as Compensation Category A.
The claimants also challenge the Claims Administrator’s Policy 443, arguing
that it should not have been applied to their parcels because it violates the
terms of the Settlement Agreement.          Without the policy, the claimants’
argument goes, their parcels would have been lumped with the neighboring




DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC & PROPERTY DAMAGE CLAIMS, 1 (2013),
http://www.deepwaterhorizoneconomicsettlement.com/docs/Appeal_Panel_Procedures.pdf.
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Lot 5 (which was oiled), resulting in the classification of all five lots as
Compensation Category A.
                                              IV.
       “Our review of the district court’s judgment is for abuse of discretion.” 25
However, “[t]he interpretation of a settlement agreement is a question of
contract law that this [c]ourt reviews de novo.” 26 The Settlement Agreement,
by its terms, is “interpreted in accordance with General Maritime Law.” 27
“Under admiralty law, a contract ‘should be read as a whole and its words given
their plain meaning unless the provision is ambiguous.’” 28
       To the extent the claimants argue that the district court misapplied the
Settlement Agreement to the facts of their cases, we find no abuse of discretion
in the district court’s judgments. And to the extent the claimants argue that
the district court misinterpreted the Settlement Agreement, their arguments
fail even on de novo review.
       First, as to the claimants’ argument that the Compensation Category
Map labels their parcels as Compensation Category A, we conclude that the
Framework dictates that the database, not the map, controls.
       Resolution of the issues in this Deepwater Horizon appeal are controlled
by the Settlement Agreement itself.                    Its terms govern the claims


       25  BP Expl. & Prod., Inc. v. Claimant ID 100169608, 682 F. App’x 256, 259 (5th Cir.
2017) (per curiam) (citation omitted). “We have not yet directly addressed whether the abuse
of discretion standard of review varies depending on whether the district court granted or
denied a request for review.” Id. at 259 n.3 (citations omitted). However, “we need not and
do not address any potential nuances” because “[e]ven assuming that our review of the
district court’s judgment following the grant of discretionary review is more lenient, [the
claimants’] claims all fail because, as discussed below, the district court did not misinterpret
the Settlement Agreement.” Id.
        26 In re Deepwater Horizon, 864 F.3d 360, 363 (5th Cir. 2017) (quoting In re Deepwater

Horizon, 785 F.3d 1003, 1011 (5th Cir. 2015)).
        27 Economic and Property Damages Settlement Agreement ¶ 36.1.
        28 Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016)

(citation omitted) (quoting Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir.
2009)).
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administration process. And those terms do not provide grounds for disturbing
the classifications of the subject parcels as Compensation Category B by the
Program, Appeal Panel, or district court. Even if the Compensation Category
Map is read to label the claimants’ parcels as Compensation Category A, 29 the
Settlement Agreement unambiguously provides that the database, not the
map, is presumed to be the best available evidence.
       The Settlement Program and its mapping experts have reviewed the
database information for the parcels at issue on several occasions, and they
have concluded each time that the parcels are properly classified as
Compensation Category B. The Appeal Panel and district court agreed with
the Compensation Category B classification, and we have no basis to disagree
with this finding. To the extent that the Compensation Category Map and the
Claims Administrator’s database conflict, we find that the database must
control under the clear terms of the Framework. 30 And the claimants have not
even attempted to rebut the presumption in favor of the database by arguing
that their parcels were, in fact, oiled, or that the database is incomplete or
incorrect. 31




       29  Both BP and the claimants seem to agree that the colors in the legend of the
Compensation Category Map were inadvertently flipped. We assume, for purposes of our
analysis, that this is true.
        30  Economic and Property Damages Settlement Agreement, Compensation
Framework for Wetlands Real Property Claims (Exhibit 12A) at 3; see also Granting of
Request for Discretionary Court Review Notice, No. 2018-1033, DEEPWATER HORIZON CLAIMS
CENTER: ECONOMIC & PROPERTY DAMAGE CLAIMS, http://www.deepwaterhorizoneconomic
settlement.com/docs/Discretionary_Review_II.PDF (affirming Appeal Panel decision against
claimant where panel noted that the Claims Administrator’s “database is ‘presumed to be the
best available evidence’ of correct assignment to a compensation category,” which
presumption had not been rebutted there because the claimant had not submitted
documentation showing that her parcel contained the presence of oil).
        31 See In re Deepwater Horizon, 814 F.3d at 752 (“If the Claims Administrator’s

database indicates that a particular property is not eligible for compensation, the onus is on
the claimant to obtain and provide any documentation that could show otherwise.”).
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       Second, we uphold the application of Policy 443 to the parcels at issue
against the claimants’ challenges to the policy. This court has recognized “that
the Claims Administrator cannot reasonably administer the Settlement
Program without devising some additional procedures and policies” and that
“the Settlement Agreement contemplates such action by the Claims
Administrator.” 32 Therefore, we generally uphold the application of policies
that apply or clarify the Settlement Agreement’s provisions to a specific factual
situation, 33 while striking down policies that violate the Settlement
Agreement’s language 34 or are contrary to the Settlement Agreement in their
substance. 35
       Policy 443 does not violate the language of the Framework, nor is it
contrary to the Framework in its substance. Rather, the policy simply clarifies
the Framework’s application to the factual situation of a wetlands claim for a
lot that has been consolidated with other lots into a single tax assessment ID.
In that situation, Policy 443 requires a separate analysis of each lot, including
a determination of each lot’s proper Compensation Category. 36 Therefore, we


       32  In re Deepwater Horizon, 641 F. App’x 405, 409 n.4 (5th Cir. 2016) (per curiam)
(citations omitted).
        33 See In re Deepwater Horizon, 753 F.3d 509, 513-14 (5th Cir. 2014).
        34 See In re Deepwater Horizon, 858 F.3d 298, 303-04 (5th Cir. 2017), reh’g denied, 869

F.3d 351 (5th Cir. 2017) (per curiam); Claimant ID 100217021 v. BP Expl. & Prod., Inc., 693
F. App’x 272, 274 (5th Cir. 2017) (per curiam).
        35 See In re Deepwater Horizon, 641 F. App’x at 409.
        36 We note that this holding is consistent with a line of district court decisions in which

this issue was raised. Granting of Request for Discretionary Court Review Notice, No. 2017-
2054, DEEPWATER HORIZON CLAIMS CENTER: ECONOMIC & PROPERTY DAMAGE CLAIMS,
http://www.deepwaterhorizoneconomicsettlement.com/docs/Discretionary_Review.pdf
(adopting en banc Appeal Panel’s reasoning that “Policy 443 contains a proper interpretation
and application of the Wetlands Real Property Compensation Framework”); Granting of
Request for Discretionary Court Review Notice, No. 2017-2551, DEEPWATER HORIZON CLAIMS
CENTER:             ECONOMIC            &          PROPERTY              DAMAGE             CLAIMS,
http://www.deepwaterhorizoneconomicsettlement
.com/docs/Discretionary_Review.pdf (concluding that Claims Administrator correctly applied
Policy 443 where claimant argued that presence of oil on neighboring portion of property
should have resulted in categorization of entire property as Compensation Category A);
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uphold the application of Policy 443 to the subject parcels by the Program,
Appeal Panel, and district court.
                                            V.
       For these reasons, we conclude that the district court did not err in
finding that the parcels at issue are properly classified as Compensation
Category B. Accordingly, we AFFIRM the district court’s judgments.




Granting of Request for Discretionary Court Review Notice, No. 2018-56, DEEPWATER
HORIZON      CLAIMS     CENTER:     ECONOMIC       &    PROPERTY     DAMAGE       CLAIMS,
http://www.deepwaterhorizoneconomicsettlement.com/docs/Discretionary_Review_II.PDF
(“This Court has previously upheld the application of Claims Administrator Policy 443. . . .
The Settlement Program appropriately applied Policy 443 to the facts of this claim.”);
Granting of Request for Discretionary Court Review Notice, No. 2018-80, DEEPWATER
HORIZON      CLAIMS     CENTER:     ECONOMIC       &    PROPERTY     DAMAGE       CLAIMS,
http://www.deepwaterhorizoneconomicsettlement.com/docs/Discretionary_Review_II.PDF
(concluding that Appeal Panel properly affirmed application of Policy 443 where Appeal
Panel noted that the parcel at issue was not oiled and was therefore entitled only to
Compensation Category B compensation).
                                            12
