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

                                                                                     FILED
                                                                                 March 12, 2019
                                      No. 18-30595
                                                                                  Lyle W. Cayce
                                                                                       Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

              Requesting Parties - Appellants

v.

CLAIMANT ID 100224371,

              Objecting Party - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-3260


Before WIENER, DENNIS, and OWEN, Circuit Judges.
WIENER, Circuit Judge*
       This appeal comes to us following an award granted under the
Deepwater Horizon Economic and Property Damages Settlement Agreement
(“the Settlement Agreement”). Defendant-Appellant BP Exploration &
Production, Inc. (“BP”) appeals the district court’s denial of its request for




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                   No. 18-30595
discretionary review of the award granted to Claimant ID 100224371 (“Atlas
Roofing”).
      Following the Deepwater Horizon oil spill in April 2010, BP entered into
the Settlement Agreement, which is being implemented by the Court
Supervised Settlement Program (“CSSP”). Under the Settlement Agreement,
businesses may submit business economic loss claims (“BEL” claims) for losses
“allegedly arising out of, due to, resulting from, or relating in any way to,
directly or indirectly, the Deepwater Horizon incident.” As part of the claim
calculation, the Settlement Agreement provides a formula that uses
corresponding revenues and expenses from a specified time. In response to
direction from the district court, the Claims Administrator developed Policy
495 to handle BEL claims with mismatched revenues and expenses. Policy 495
provides seven criteria to be used in determining whether financial records are
sufficiently matched. If a claimant’s financial records do not trigger one of the
seven criteria, the claim is presumed to be sufficiently matched. However, the
CSSP accountants, using their professional judgment, may determine that
there are other indicators that the financial records are not sufficiently
matched. If any one criterion is triggered or the CSSP accountants determine
that a claimant’s financial records are not sufficiently matched, the claim is
subject to further review using the Annual Variable Margin methodology
(“AVMM”). 1
      Atlas Roofing filed a BEL claim in July 2013. CSSP accountants did not
identify Atlas Roofing’s claim for analysis under the AVMM and, in May 2017,
the Claims Administrator awarded Atlas Roofing approximately $ ██████.
BP appealed this award to a Settlement Appeal Panel. That panel affirmed the



      1The AVMM is “applied to adjust a claimant’s contemporaneous P&Ls that have been
deemed not to be ‘sufficiently matched.’”
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award, and BP appealed to the district court, which declined to review the
award. BP now appeals the district court’s decision to deny discretionary
review.
       BP contends that the district court abused its discretion by declining to
review the award because the award (1) contravenes Policy 495 and (2) raises
an important question about how to interpret the Settlement Agreement. BP
alleges that Atlas Roofing’s financial records contain “other significant indicia”
of mismatching and argues that, by failing to apply the AVMM to Atlas
Roofing’s claim, the CSSP accountants disregarded the intent of the
Settlement Agreement and abused their discretion. Atlas Roofing responds
that the district court did not abuse its discretion simply because BP disagrees
with the discretionary administrative decision made by the CSSP on the facts
of this particular claim.
           a. Legal Standard
       Under the Settlement Agreement, the district court is granted “a
discretionary right of review, which is not a right for the parties to be granted
such review.” 2
             The district court has discretion to deny review of the Appeal
       Panel’s decision, and we review the district court’s decision for
       abuse of discretion.
             While we have not defined the exact limits of a district
       court’s discretion to deny review, we have said that a district court
       abuses its discretion when it denies review and one of the following
       factors exist: (1) the request for review raises an issue that has
       split the Appeal Panels and would substantially impact the
       Settlement Agreement’s administration once resolved; (2) the
       dispute concerns a pressing question about how to interpret the
       Settlement Agreement’s rules; or (3) the Appeal Panel misapplied
       or contradicted the Settlement Agreement, or had the clear
       potential to do so.

       2 Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 316–17 (5th Cir. 2016)
(internal quotations omitted).
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              We have also been careful not to transform discretionary
       review into mandatory review. Accordingly, the district court need
       not review a claim that raises a non-pressing Settlement
       Agreement interpretation issue or merely challenges “the
       correctness of a discretionary administrative decision in the facts
       of a single claimant’s case.” 3

           b. Analysis
       First, we do not “ask the district court to consider every claim that
involves a possible misapplication or contradiction” of the Settlement
Agreement. 4 Rather, we “require review only if the Appeal Panel’s decision was
‘incongruent with the language of the Settlement Agreement.’” 5 “The
Settlement Agreement contemplates that loss calculations are to be based
upon accounting records that sufficiently match revenues with expenses.” To
that end, the Claims Administrator developed Policy 495 “to achieve sufficient
‘matching’ in such a way that [a claimant’s] accounting records may serve as a
basis for ‘realistic measurement of economic loss.’” 6 Policy 495 sets out a
“process for identifying those claims whose . . . financial records fail to
sufficiently    match     revenues     with       expenses.”   This    process     involves
consideration of the seven criteria. If the claim triggers one or more of those
criteria, then it is identified for “further matching analysis.”
              Any claim . . . that does not fall within one of the . . . seven
       criteria shall be presumed to be “sufficiently matched,” provided;
       however, that if in the professional judgment of the CSSP
       Accounting Vendors, a claimant’s financial records contain other
       significant indicia that the claim may not be “sufficiently


       3 Claimant ID 100028922 v. BP Expl. & Prod., Inc., 710 F. App’x 184, 186–87 (5th Cir.
2017) (quoting Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir.
2017) (per curiam)).
       4 Claimant ID 100028922, 710 F. App’x at 188.
       5 Id. (quoting Claimant ID 100250022 v. BP Expl. & Prod., Inc., 847 F.3d 167, 170 (5th

Cir. 2017) (per curium)).
       6 “It is the intent of th[e] policy to ensure both causation determination and

compensation determination are both based on sufficiently matched P&Ls.”
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      matched,” the CSSP reserves the right to identify such claim for
      further matching analysis as set forth below.

      Here, “[w]hen the program accountant submitted [Atlas Roofing’s] P&Ls
to matching analysis, none of the criteria of Policy 495 was triggered,” and
Atlas Roofing’s claim was presumed “sufficiently matched.” From that point,
Policy 495 provides that determination of “other significant indicia” is based
on the discretion of the CSSP Accounting Vendors according to their
professional judgment. BP claims that there were “other significant indicia,”
but it has not demonstrated that these indicia were identified by the CSSP
accountants. More importantly, the CSSP accountants followed the process
outlined in Policy 495 and simply exercised their professional judgment
regarding this individual claim. The fact that BP disagrees with the
accountants’ exercise of professional judgment does not mean that they
misapplied or contradicted the Settlement Agreement.
      “[T]he clear purpose of the Settlement Agreement [is] to curtail
litigation” and, as a practical matter, these claims must be handled by the
settlement process. 7 In the absence of a blatant violation of or disregard for the
Settlement Agreement, a third review of an award is inappropriate. The CSSP
accountants followed the process provided by the Settlement Agreement and
Policy 495, and they merely exercised their professional judgment. Neither
they nor the Appeal Panel misapplied or contradicted the Settlement
Agreement.
      Second, “[w]e do not ask district courts to review every claim that poses
an interpretive issue. We require review only when the Appeal Panel’s decision
involves a non-isolated or substantial error of interpretation.” 8 Here, the crux



      7   Holmes Motors, 829 F.3d at 316–17.
      8   Claimant ID 100028922, 710 F. App’x at 188.
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of the disagreement is whether Atlas Roofing’s revenues and expenses were
sufficiently matched. This is a factual disagreement rather than an
interpretation disagreement. Because, as described above, the CSSP
accountants followed the procedure outlined in Policy 495 to evaluate Atlas
Roofing’s financial records for sufficient matching, they were within their
discretion to decline further review of these records. The purpose of the policy
is well served by the procedure for identification of unmatched claims, and the
accountants followed this procedure. 9 Furthermore, Policy 495 states that (1)
absent the triggering of one or more of the seven criteria, any further review is
within the accountants’ professional judgment, and (2) they merely “reserve
the right to identify such a claim for further matching analysis.” Additionally,
the instant award and the Appeal Panel decision do not set precedent that
must be followed when granting future awards. This decision regarding alleged
mismatching of criteria applies only to Atlas Roofing.
      BP “has not shown that any of the abuse-of-discretion factors are
present.” 10 The district court thus did not abuse its discretion in declining to
review the award to Atlas Roofing.
AFFIRMED




      9   Both parties provided input during the formulation of Policy 495 and were able to
respond with concerns during the drafting process.
        10 Claimant ID 100028922, 710 F. App’x at 187. BP does not allege that its “request

for review raises an issue that has split the Appeal Panels.” Id.
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