     Case: 19-30090      Document: 00515117619         Page: 1    Date Filed: 09/13/2019




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

                                                                                 FILED
                                    No. 19-30090                         September 13, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
CLAIMANT ID 100062351,

              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
                            USDC No. 2:18-CV-13781


Before KING, SOUTHWICK, and DUNCAN, Circuit Judges.
PER CURIAM:*
       This is yet another claim under the Settlement Program created after
the Deepwater Horizon disaster. The case involves neither a split in appeal
panel decisions nor a misapplication of the Settlement Agreement. The district
court did not abuse its discretion in denying review. AFFIRMED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30090
                  FACTUAL AND PROCEDURAL BACKGROUND
          We have elsewhere detailed the facts surrounding the Deepwater
Horizon disaster, the Settlement Agreement negotiated to resolve claims
related to the enormous volumes of oil discharged into the Gulf of Mexico
during that disaster, and the claims process under that Agreement for
Business Economic Loss claimants. See In re Deepwater Horizon (Deepwater
Horizon I), 732 F.3d 326, 329-30 (5th Cir. 2013); see also In re Deepwater
Horizon, 785 F.3d 1003, 1007 (5th Cir. 2015) (explaining the claims
administration process).
          The claimant here is a Louisiana seafood business. It is one part of a
larger business consisting of three separate corporate entities with common
ownership. The three entities are: (1) the claimant in this appeal, New Orleans
Fish House & Seafood, LLC (“NOFH, LLC”); (2) New Orleans Fish House &
Seafood, Inc. (“NOFH&S”); and (3) New Orleans Fish House, Inc. (“NOFH,
Inc.”).     NOFH, Inc. owned the properties that it leased to the two other
corporate entities. NOFH, LLC and NOFH&S bought, processed, and sold
seafood.
          Each of the three entities submitted claims through the current
Settlement Program and its precursor, the Gulf Coast Claims Facility
(“GCCF”). NOFH&S and NOFH, LLC were evaluated together for the purpose
of calculating an award under the GCCF. During the court-ordered transition
to the Settlement Program from the GCCF, NOFH&S accepted payment of
60% of the pending joint-settlement offer while reserving its rights to recover
the greater of either the economic class settlement amount less the already-
accepted payment, or the remaining 40% of its pending joint-settlement offer,
as it was entitled under Section 4.2.3.1 of the Settlement Agreement.
          After the transition, the three entities again submitted separate claims
through the Settlement Program. The claim filed by NOFH&S was resolved
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                                 No. 19-30090
first. The calculated award under the Settlement Agreement was $791,671.86.
Because this amount was lower than the $1,273,979 award NOFH&S had
already received as 60% of its offer under the GCCF, it received the remaining
40%: $324,586.
      The claimant here, NOFH, LLC, sought $2,087,508 for several of its
facilities located in Louisiana and Mississippi as a Seafood Commercial
Wholesale or Retail Dealer — Type A in Zone C. The Claims Administrator
designated NOFH, LLC a Secondary Seafood Processor based on NAICS Code
311712 in Zone C and calculated an award of $2,089,663.31. This award was,
however, offset by $1,076,395.89 — representing the total award NOFH&S had
already received in excess of its calculated award under the Settlement
Agreement, plus payments already made to the owners by the GCCF and BP
for the activity of the businesses. As a result, the total award to NOFH, LLC
under the Settlement Agreement was $1,013,267.42.
      BP sought review by an Appeal Panel, arguing the Claims Administrator
had assigned NOFH&S the wrong NAICS code. BP maintained that NOFH&S
should have been categorized as a participant in the Secondary Seafood
Industry in Zone D, and therefore it was required to satisfy the Settlement
Agreement 4B causation requirements. NOFH, LLC cross-appealed, arguing
that the Claims Administrator incorrectly offset its award based on prior
payments to a separate entity.
      The Appeal Panel decided in favor of BP, accepting its proposed
settlement amount of $0 under the baseball appeal process set forth in Section
6 of the Settlement Agreement based on a determination that NOFH, LLC
should have been categorized as being in the Secondary Seafood Industry in
Zone D and that it failed to prove causation. The Appeal Panel further ruled
that the Claims Administrator correctly applied prior payments to NOFH&S
as offsets.
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                                  No. 19-30090
      The claimant sought discretionary review of the Appeal Panel decision
in the Eastern District of Louisiana. That court denied review. The claimant
now appeals from the denial of discretionary review.


                                  DISCUSSION
      We review the district court’s denial of discretionary review of
Settlement Program claims for abuse of discretion. BP Expl. & Prod., Inc., v.
Claimant ID 100281817, 919 F.3d 284, 287 (5th Cir. 2019). The district court
abuses its discretion when the case “raises a recurring issue on which the
Appeal Panels are split [and] the resolution of the question will substantially
impact the administration of the Agreement” or “the decision not reviewed . . .
actually contradicted or misapplied the Settlement Agreement, or had the clear
potential to [do so].”     Id. (quotations omitted).   When the determination
involves a “purely legal question[] of contract interpretation” of the Settlement
Agreement, our “review is effectively de novo” because errors of law are
necessarily abuses of discretion. In re Deepwater Horizon, 785 F.3d at 1011.
The district court does not abuse its discretion to deny review where there is
“no pressing question of how the Settlement Agreement should be interpreted”
or where review would be of “a discretionary administrative decision” that
turns on “the facts of a single claimant’s case.” Claimant ID 100212278 v. BP
Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017) (quotation omitted).
      The claimant first contends that the Appeal Panel decision misapplied
the Settlement Agreement in finding that it had not proved causation without
providing the opportunity to supplement the record with causation
documentation, which it alleges was inconsistent with the “claimant friendly”
claims process set forth in the Settlement Agreement. The claimant also
argues that the Appeal Panel erred in affirming the application of a settlement
offset based on GCCF payments to NOFH&S.
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                                 No. 19-30090
      With respect to causation, the claimant alleges that the district court
abused its discretion in failing to review the Appeal Panel’s alleged failure to
follow Sections 4.3.7, 4.4.2, and 6.1.1 of the Settlement Agreement. Section
4.3.7 mandates that the Settlement Program “shall use its best efforts” to give
claimants “assistance, information, opportunities and notice” so that each
claimant “has the best opportunity to be determined eligible” for payment.
Section 4.4.2 requires the Settlement Program to notify each claimant who had
a pending GCCF claim at the time of Settlement “what, if any, additional
information may be necessary or desirable to pursue [pending claims] under
the terms of the Settlement Agreement.”         Finally, Section 6.1.1 of the
Settlement Agreement creates a notice and appeals process for claims denied
“on grounds of insufficient documentation,” providing claimants the right to
resubmit any such claims “at any time prior to termination of the Settlement
Agreement.”
      With respect to the settlement offset, the claimant alleges that the
Appeal Panel’s treatment of NOFH&S and NOFH, LLC is inconsistent with
the language of the Settlement Agreement that directs separate corporate
entities to file separate claims under unique Employer Identification Numbers.
The claimants also allege that the Appeal Panel’s decision created a split
because at least four prior Appel Panel decisions “treated claimants separately
when they had separate EINs and filed separate tax returns, despite the fact
that they operated in the same locations or shared common ownership.”
Claimant ID 100068924 v. BP Expl. & Prod., Inc., 765 F. App’x 956, 959 (5th
Cir. 2019).
      As to the offset payment, BP argues that the separate claims filed by
NOFH, LLC and NOFH&S under the GCCF were consolidated under a single
claim number, and the GCCF portal made it clear that “both the Corporation
and the LLC were evaluated together for this calculation as they are related
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                                 No. 19-30090
entities with 95% + of the corporations sales going to the LLC in the form of an
intercompany transfer.”
      As to the Appeal Panel’s determination that the claimant was required
but failed to prove causation, BP argues that Rule 13(h) of the Rules Governing
the Appeal Process specifically allows claimants to submit additional
documents with its “Final Proposal and supporting memorandum” in “any
appeal by BP, where BP contends that the claim does not comply with the
applicable   documentation    requirements    set   forth   in   the   Settlement
Agreement.” Further, the Rules allow the Appeal Coordinator to extend the
Final Proposal deadline if the claimant “cannot reasonably obtain and submit
the documentation by the deadline for submitting its Final Proposal.”
      The Appeal Panel’s decision is independently supported by its decision
that the claimant was required to prove causation. That decision is precisely
the sort of “discretionary administrative decision” that turns on “the facts of a
single claimant’s case,” which the district court has the discretion to deny.
Claimant ID 100212278, 848 F.3d at 410 (quotation omitted).
      AFFIRMED.




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