     Case: 16-20028   Document: 00513909800      Page: 1    Date Filed: 03/14/2017




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

                                                                           FILED
                                                                        March 14, 2017
                                 No. 16-20028
                                                                         Lyle W. Cayce
                                                                              Clerk
KENNETH W. ABBOTT; FOOD & WATER WATCH, INCORPORATED,

             Plaintiffs - Appellants

v.

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

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Plaintiffs Kenneth Abbott and Food & Water Watch, Incorporated appeal
the district court’s grant of summary judgment on all claims in favor of
Defendants BP Exploration & Production, Inc., BP America, Inc., BP p.l.c., and
BP Products North America Inc. (collectively, “BP”).       We AFFIRM.
                                 I. Background
      This appeal centers on the regulatory process through which BP built
and maintained the Atlantis Platform, a semi-submersible floating oil
production facility located in the Gulf of Mexico. Plaintiff Keith Abbott worked
for BP in the Atlantis administrative offices from August 2008 to February
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2009. During his employment, Abbott came to believe that BP did not have all
of the necessary documentation for the Atlantis and that many of the Atlantis
documents that BP did have were not approved by engineers as required by
applicable regulations.
      On or about April 9, 2009, Abbott filed a written submission to the
United States Attorney General and the United States Attorney for the
Southern District of Texas detailing his concerns with BP’s Atlantis
documentation. Abbott subsequently filed, under seal, a complaint pursuant
to 31 U.S.C. § 3730(b)(2) of the False Claims Act (“FCA”) on April 21, 2009,
claiming, inter alia, that BP falsely certified compliance with various
regulatory requirements. As a result of his lawsuit, the Department of the
Interior (“DOI”) began reviewing BP’s compliance with those regulatory
requirements in May 2009. DOI also received inquiries from members of
Congress about the Atlantis in the wake of testimony, including that of Abbott,
before the Natural Resources Subcommittee on National Parks, Forests, and
Public Lands in June 2009. By March 2010, DOI indicated to Congress that
DOI would conduct a full investigation.
      On September 10, 2010, while the DOI was investigating the Atlantis,
Abbott amended his complaint to both add Food & Water Watch, Incorporated
as a plaintiff and include additional claims for violations of the Outer
Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq. The amended
complaint contained a section titled “Publicly Available Information,” in which
Abbott included new evidence concerning the specific language of the
certifications made by BP, pursuant to 30 C.F.R. §§ 250.802(e)(5) (2005) and
250.901(d) (2002), to the DOI. BP filed a motion to dismiss in response to this
amended complaint, to which the United States of America (“Government”)




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filed a statement of interest that took no position on the validity or sufficiency
of Plaintiffs’ amended complaint. 1
      DOI’s investigation culminated in a 2011 report (“DOI Report”) that
concluded that “Abbott’s allegations that Atlantis operations personnel lacked
access to critical, engineer-approved drawings are without merit,” and that
“Abbott’s allegations about false submissions by BP to [DOI] are unfounded.”
The DOI Report also “found no grounds for suspending the operations of the
Atlantis . . . or revoking BP’s designation as an operator . . . .”
      Shortly after the DOI issued its report, the district court denied BP’s
motion to dismiss.        During discovery, Food & Water Watch, Incorporated
identified three donors whom they alleged could be injured by an oil spill due
to the allegedly false Atlantis certifications. These donors were Allen Estay, a
shrimp business operator located off the Gulf in Louisiana, Nancy James, a
resident along the Gulf in Florida, and Donna Boland, a California resident
who owns a rental property near the Gulf in Texas. Abbott also stated that he
regularly visited the Gulf, and would be damaged if an oil spill resulted from
the allegedly incorrect certifications. Following discovery, the parties filed
motions for summary judgment.               The district court ultimately granted
summary judgment in favor of BP on all claims. This appeal followed.
                                 II. Standard of Review
      Motions for summary judgment are reviewed de novo. United States ex
rel. Babalola v. Sharma, 746 F.3d 157, 160 (5th Cir.), cert. denied, 134 S. Ct.
2856 (2014). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). We view the



      1    The Government instead disputed two arguments raised by BP in their motion to
dismiss.
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evidence on the record “in the light most favorable to the non-moving party.”
United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011) (citing
United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006)).
                                       III. Discussion
       In order to survive BP’s motion for summary judgment, Plaintiffs must
create a dispute of material fact as to the following four elements of an FCA
claim:     “(1) whether there was a false statement or fraudulent course of
conduct; (2) made or carried out with the requisite scienter; (3) that was
material; and (4) that caused the government to pay out money or to forfeit
moneys due (i.e., that involved a claim).” United States ex rel. Longhi v. United
States, 575 F.3d 458, 467 (5th Cir. 2009) (citation omitted). 2                     “The term
‘material’ means having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.” Universal Health
Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2002 (2016)
(quoting 31 U.S.C. § 3729(b)(4)) (citing Neder v. United States, 527 U.S. 1, 16
(1997) and Kungys v. United States, 485 U.S. 759, 770 (1988)).




       2  BP also moved for summary judgment on the basis that the court lacked subject
matter jurisdiction over Plaintiffs’ amended complaint due to the FCA public disclosure bar.
31 U.S.C. § 3730(e)(4)(A). But by the time Plaintiffs amended their complaint and BP moved
for summary judgment on this ground, the language of the public disclosure bar had been
changed by the Patient Protection and Affordable Care Act (“ACA”). While we have not
analyzed whether the ACA-changed language alters the jurisdictional nature of the public
disclosure bar, a number of our sister circuits have determined that the new language
inserted by the ACA no longer presents a jurisdictional bar. See United States ex rel. Moore
& Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d Cir. 2016) (“[W]e conclude
that the amended bar is not jurisdictional.”); United States ex rel. Osheroff v. Humana, Inc.,
776 F.3d 805, 810 (11th Cir. 2015) (“We conclude that the amended § 3730(e)(4) creates
grounds for dismissal for failure to state a claim rather than for lack of jurisdiction.”); United
States ex rel. May v. Purdue Pharm. L.P., 737 F.3d 908, 916 (4th Cir. 2013) (“It is apparent,
however, that the public-disclosure bar is no longer jurisdictional.”). We agree with our sister
circuits that the public disclosure bar is no longer jurisdictional. We are thus not required to
first address this argument by BP, as it has no effect on our jurisdiction to entertain other,
more persuasive arguments.
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      Plaintiffs take issue with multiple facets of the district court’s grant of
summary judgment. We address each in turn.
      As recently discussed by the Supreme Court in Escobar, “[t]he
materiality standard is demanding.” Id. at 2003. It debunked the notion that
a Governmental designation of compliance as a condition of payment by itself
is sufficient to prove materiality. Id. Further, the Court concluded that it is
not “sufficient for a finding of materiality that the Government would have the
option to decline to pay if it knew of the defendant’s noncompliance.” Id.    In
summarizing the determination of materiality, the Supreme Court offered the
following insight:
            [I]f the Government pays a particular claim in full
            despite     its  actual knowledge that certain
            requirements were violated, that is very strong
            evidence that those requirements are not material.
            Or, if the Government regularly pays a particular type
            of claim in full despite actual knowledge that certain
            requirements were violated, and has signaled no
            change in position, that is strong evidence that the
            requirements are not material.
Id. at 2003–04.
      Plaintiffs’ FCA claims center on whether engineers approved the various
stages of construction of the Atlantis.     In arguing that fact issues exist,
Plaintiffs point to missing stamps, drawings not specifically marked as “As-
Built,” BP internal procedures requiring “As-Built” markings, and testimony
from a DOI official stating that the Atlantis would not have been approved had
BP not certified its compliance with various regulations. These facts, however,
do not create an issue of fact as to materiality given the particular
circumstances of Plaintiffs’ case. Rarely does the pursuit of an individual’s
FCA claims lead to an investigation requested by Congress. But that is the
case with these Plaintiffs, whose insistence on the alleged issues with the

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Atlantis led to Congressional hearings, an investigation by a federal agency,
and the DOI Report. The DOI Report considered many of the same arguments
advanced before us now by Plaintiffs and nonetheless found that the Atlantis
was in compliance with those regulations relating to certification. The DOI
Report also found no grounds to suspend the operation of the Atlantis or revoke
BP’s designation as an operator.
      As recognized in Escobar, when the DOI decided to allow the Atlantis to
continue drilling after a substantial investigation into Plaintiffs’ allegations,
that decision represents “strong evidence” that the requirements in those
regulations are not material. Id. These “strong facts” have not been rebutted
by Plaintiffs’ evidence such that Plaintiffs have failed to create a genuine
dispute of material fact as to materiality. The district court therefore correctly
granted summary judgment on the FCA claims in favor of BP.
      Turning to Plaintiffs’ OCSLA claims, we agree with the district court
that Plaintiffs lack standing to pursue these claims.        In order to survive
summary judgment, Plaintiffs must demonstrate (1) an injury in fact that is
concrete and actual or imminent; (2) a causal connection between the injury
and the challenged action of the defendant; and (3) a likelihood that the injury
would be redressed by a favorable judicial decision. United States v. Johnson,
632 F.3d 912, 919 (5th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992)).     Implicit in the first requirement of Article III
standing is the notion that the injury in fact is particularized to the Plaintiffs.
Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citing Lujan, 504 U.S. at
560 n.1).   “Particularization is necessary to establish injury in fact” and
requires Plaintiffs to demonstrate that their injury “affect[s] the plaintiff[s] in
a personal and individual way.” Id. (citation omitted); see also Pub. Citizen,
Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1292 (D.C. Cir.
2007) (“The Supreme Court also has stated that the asserted injury must be
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particularized—which the Court has also described as personal, individual,
distinct, and differentiated—not generalized or undifferentiated.” (citations
omitted)).
      Here, Plaintiffs have failed to plead individualized injuries.        Their
injuries instead appear to be generalized and undifferentiated. These alleged
injuries could occur to anyone who uses the Gulf regularly, works near the
Gulf, or lives or owns property near the Gulf, i.e., millions of people. We hold,
consistent with the district court, that Plaintiffs’ injuries are not sufficiently
particularized to support Article III standing. See Spokeo, 136 S. Ct. at 1548;
see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006) (“Standing
has been rejected in such cases because the alleged injury is not concrete and
particularized, but instead [an injury plaintiff] suffers in some indefinite way
in common with people generally.” (citations omitted)).
      For the reasons discussed above, we AFFIRM.




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