     Case: 16-30521      Document: 00514051001         Page: 1    Date Filed: 06/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                      No. 16-30521
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           June 27, 2017

CLAIMANT ID 100236236,                                                    Lyle W. Cayce
                                                                               Clerk
              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. 2:16-CV-2085


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       The appellant is a commercial rental property owner that filed a
Business Economic Loss claim under the Deepwater Horizon Economic and
Property Damages Settlement Agreement (“Settlement Agreement”). The
owner challenges the district court’s denial of discretionary review of an Appeal




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30521
Panel decision denying its initial claim. Because the district court did not
abuse its discretion in declining to review the claim, we AFFIRM.
                                        I.
      This case arises from the Settlement Agreement involving the Deepwater
Horizon oil spill. Appellant Aldrich Investments (“Aldrich”) is a commercial
rental property owner. In order to recover on its claim for damages, Aldrich
must meet the requirements set forth in the Settlement Agreement. Namely,
Aldrich must be an entity “doing business or operating in the Gulf Coast Areas
. . . [that] owned or leased real property in the Gulf Coast Areas at any time
from April 20, 2010 to April 16, 2012.” Settlement Agmt, § 1.2; ROA.1855–56
(emphasis omitted). Because Aldrich was in “Zone A,” near the spill, it is not
required to provide any evidence that the spill caused a revenue loss, and
instead must meet the relevant revenue-pattern test. See ROA.2045; In re
Deepwater Horizon, 744 F.3d 370, 375 (5th Cir. 2014). This test has two parts
and allows the claimant to select a compensation period and a comparable
benchmark period to determine its business economic loss, if any, due to the
oil spill; if a claimant lost money as a result of the spill, it is entitled to
compensation under the Settlement Agreement. See ROA.2062.
      Aldrich did not have a commercial tenant for many years preceding the
spill. Aldrich’s last commercial tenant’s lease ended in August 2008, after
which it enlisted a broker for one year to try to rent the property. Although the
broker agreement ended in September 2009, the broker continued to try to rent
the property out past the date of the oil spill, including the period from January
to April 2010. ROA.1548–71. Aldrich alleges that on both April 1, and April 19,
2010, the broker had a prospective tenant actively pursuing the property.
ROA.1561, 1565, 1567–71. After the spill, the broker’s efforts to rent the
property continued, albeit unsuccessfully. ROA.1169–79; ROA.312–28. Aldrich


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                                  No. 16-30521
incurred over $60,000 of expenses to the property throughout 2010. ROA.318–
23.
       In July 2013, Aldrich filed a Business Economic Loss claim form, which
was denied in November 2014. The Claims Administrator stated that Aldrich
was not doing business or operating in the designated area at the time of the
oil spill. ROA.1531–34.     Aldrich requested review, and the Administrator
issued a Post-Re-Review Denial Notice in July 2015, denying the claim on the
same basis. ROA.1539–42. Aldrich timely requested reconsideration of this
denial, which received a Post-Reconsideration Denial Notice a month later,
again on the same grounds. ROA.1543. Aldrich then requested a call from the
analyst denying the claim to get more detail about why the claim was denied.
According to Aldrich, the analyst indicated it was because Aldrich did not
report any revenues for 2010. ROA.1572–73; 1576–82.
       Aldrich then filed a notice of appeal in October 2015. ROA.1574. The
Appeal Panel affirmed the claim denial. ROA.1798–99. Aldrich appealed this
to the district court, which declined to use its discretionary review power over
Aldrich’s claim. Aldrich now appeals the decision of the district court.
                                        II.
       “We review the district court’s denial of discretionary review for abuse of
discretion.” Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315
(5th Cir. 2016). We generally assess whether the district court abused its
discretion in not reviewing the claim by looking to “whether the decision not
reviewed by the district court actually contradicted or misapplied the
Settlement Agreement, or had the clear potential to contradict or misapply the
Settlement Agreement.” Id. (citation omitted). However, we have been careful
to note that it is “wrong to suggest that the district court must grant review of
all claims that raise a question about the proper interpretation of the
Settlement Agreement.” Id. at 316; see also In re Deepwater Horizon, 785 F.3d
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986, 999 (5th Cir. 2015) (“We do not intend any part of this opinion to turn the
district court’s discretionary review into a mandatory review. To do so would
frustrate the clear purpose of the Settlement Agreement to curtail litigation.”).
      It may be an abuse of discretion to deny a request for review that raises
a recurring issue on which the Appeal Panels are split if “the resolution of the
question will substantially impact the administration of the Agreement.” In re
Deepwater Horizon (Smith), 632 F. App’x 199, 203–04 (5th Cir. 2015). However,
it is not an abuse of discretion to deny a request for review that “involve[s] no
pressing question of how the Settlement Agreement should be interpreted or
implemented, but simply raise[s] the correctness of a discretionary
administrative decision in the facts of a single claimant’s case.” In re Deepwater
Horizon (Sexton), 641 F. App’x 405, 410 (5th Cir. 2016).
                                        III.
      Aldrich argues that it was “doing business or operating” within the
definition of the Settlement Agreement at the relevant time and so is entitled
to a payout from BP. Because both parties agree about what the law should be
here, their dispute is by definition a factual one.
      Importantly, both parties agree that a business need not have earned
revenue during 2010 to qualify as being in business. Aldrich argues, however,
that the review panels incorrectly used a lack of revenue in 2010 as the only
outcome determinative factor, rather than using a totality of the circumstances
test. Aldrich alleges that there is a split among the Appeal Panels on this issue
and that allowing the viability of a claim to be decided based on a randomly
assigned panel is a violation of the Settlement Agreement. BP notes, however,
that of the multiple factors both parties agree should be considered, only one—
the presence of a broker—supports Aldrich’s claims to be “doing business or
operating,” and that because the agreement with the broker lapsed in 2009,
despite some evidence that it continued to look for a lessee, it is not particularly
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                                 No. 16-30521
strong evidence. Aldrich had not been earning revenue, or leasing or
advertising the property since 2008. Given the conflicting evidence in the
record regarding whether Aldrich was “doing business or operating” at the time
of the oil spill, the Appeal Panel did not abuse its discretion in affirming the
denial of Aldrich’s claim.
      Because Aldrich has failed to show either that the Appeal Panel erred in
its interpretation of the Settlement Agreement, Holmes Motors, 829 F.3d at
315, or that the dispute involves a “pressing question of how the Settlement
Agreement should be interpreted or implemented,” and instead has merely
“raise[d] the correctness of a discretionary administrative decision in the facts
of a single claimant’s case,” In re Deepwater Horizon (Sexton), 641 F. App’x 405,
410 (5th Cir. 2016), the district court did not abuse its discretion in declining
to review the decision of the Appeal Panel.
                                      IV.
      Because the district court’s denial of discretionary review does not
constitute an abuse of discretion, we AFFIRM.




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