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

                                    No. 16-30642                               FILED
                                  Summary Calendar                     December 13, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
Cons w/16-30644 and 16-30656

CLAIMANT ID 100226366,

              Requesting Party - Appellant

v.

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

              Objecting Parties - Appellees




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-3580
                             USDC No. 2:16-CV-3581
                             USDC No. 2:16-CV-3582


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Bailey Labor and Supply Co. appeals the district court’s denial of its
request for discretionary review of a decision of the administrators of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30642
                        Cons. w/16-30644 and 16-30656

Deepwater Horizon Economic and Property Damages Settlement (E&P
Settlement).   The administrators rejected Bailey’s claim for compensation
because it had previously filed a claim with, and took money from, the Gulf
Coast Claims Facility (GCCF) in exchange for executing a release. Bailey
argues that it should have been allowed to participate in the E&P Settlement
because its earlier claim with the GCCF was limited to three of its six lumber
yards. Because Bailey’s opening brief to this court does not reckon with the
threshold question whether the district court abused its discretion not to hear
the appeal from the E&P administrators, Bailey has forfeited its challenge to
this decision. We accordingly affirm.
                                        I.
      Bailey owns six lumber yards in Mississippi. Three are located in coastal
counties and three are further inland. After the Deepwater Horizon oil spill,
BP agreed to create a claims process, the GCCF, for the benefit of those injured.
Bailey submitted a claim to the GCCF for its three coastal outlets, expressly
stating that it was filing a claim only for these locations. By filing this claim,
Bailey received $172,534.46 in exchange for signing a broad release of its
claims related to the oil spill. The release covered “any losses, damages, costs,
expenses, injuries, claims, causes of actions, liabilities, or other relief that
Claimant has or may have, whether known or unknown, whether present or
future, whether direct or indirect, whether legal or equitable, arising from or
relating in any way to the April 20, 2010 blowout of the Macondo Well, the
sinking of Transocean’s Deepwater Horizon drilling rig, and the subsequent oil
spill in the Gulf of Mexico.”
      Some of those harmed by BP did not want to participate in the GCCF
and sued the company instead. These cases were consolidated for multidistrict
litigation in the Eastern District of Louisiana. With the approval of the court,
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the plaintiffs and BP entered into the E&P Settlement. Its terms excluded
those who had filed claims, received money, and signed releases through the
GCCF. Bailey wanted in nonetheless; it argued that it only partook in the
GCCF with respect to its coastal lumber yards and that the broader E&P
Settlement could allow recovery for its inland yards.
      After exhausting its appeals to the E&P administrators, Bailey
unsuccessfully sought discretionary review from the district court. The E&P
Settlement only allows for discretionary review by the district court; there is
no appeal to the district court as of right.       Holmes Motors, Inc. v. BP
Exploration & Prod., Inc., 829 F.3d 313, 316–17 (5th Cir. 2016).
                                        II.
      In its opening brief, Bailey does not acknowledge the discretionary
nature of the district court’s review of decisions of the E&P administrators. It
is only when the district court abuses its discretion that we will remand to
require the court to review what the plan administrators have done. See id. at
315. As such, to rule in Bailey’s favor, we first would have to decide that the
district court abused its discretion.    Factors that we consider in deciding
whether the district court abused its discretion include whether the issue is
frequently recurring or has divided the appellate panels of the E&P
administrators. See id. at 317. We also consider whether the administrators’
decision clearly contradicted or misapplied the settlement agreement. In re
Deepwater Horizon, 641 F. App’x 405, 409–10 (5th Cir. 2016) (per curiam).
      Bailey’s opening brief skips this step—it does not acknowledge the
standard of review, and offers no arguments to show that the district court
abused its discretion. Bailey therefore has waived an issue necessary to the
success of its appeal. See Becker v. Tidewater, Inc., 335 F.3d 376, 394 (5th Cir.
2003) (finding waiver when party failed to set forth applicable standard of
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review); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant
abandons all issues not raised and argued in its initial brief on appeal.”).
      Even if the question were properly before us, Bailey’s underlying
argument that the E&P administrators were wrong to reject its claim is
misplaced. Bailey frames the issue in terms of the scope of the claim filed with
the GCCF and the reach of the settlement it signed to obtain its GCCF payout.
The language in the E&P Settlement agreement that excludes GCCF
participants, however, is not directed at claims but at the persons or entities
who received a payout from the GCCF. Section 2.2.6 of the E&P Settlement
agreement fences out “[a]ny Natural Person or Entity who or that made a claim
to the GCCF, was paid and executed a GCCF RELEASE AND COVENANT
NOT TO SUE.” Essentially, any receipt of GCCF money makes the claimant
ineligible for the E&P Settlement. No one disputes that Bailey made a claim
to the GCCF, was paid, and executed a release. It matters not that Bailey’s
claim was limited to some of its lumber yards.
                                      ***
      The judgment is AFFIRMED.




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