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

                                                                                         FILED
                                          No. 13-30315                              May 19, 2014
                                       ___________________
                                                                                   Lyle W. Cayce
IN RE: DEEPWATER HORIZON                                                                Clerk
--------------------------------------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON
SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY,
INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA
CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER
FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD
LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on
behalf of themselves and all others similarly situated; HENRY HUTTO;
BRAD FRILOUX; JERRY J. KEE,

                 Plaintiffs - Appellees

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP PIPE LINE COMPANY,

                  Defendants - Appellants
-----------------------------------------------------------------------------
Consolidated with: 13-30329

IN RE: DEEPWATER HORIZON

--------------------------------------------------------------------------


LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON
SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY,
INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA
CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER
FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD
LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on
                                            No. 13-30315

behalf of themselves and all others similarly situated; HENRY HUTTO;
BRAD FRILOUX; JERRY J. KEE,

                Plaintiffs - Appellees

v.

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

                Defendants - Appellants


--------------------------------------------------------------------

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY

                Plaintiffs - Appellants

v.

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON
SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY,
INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA
CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER
FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD
LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on
behalf of themselves and all others similarly situated; HENRY HUTTO;
BRAD FRILOUX; JERRY J. KEE,

                Intervenor Defendants - Appellees

DEEPWATER HORIZON COURT SUPERVISED SETTLEMENT
PROGRAM; PATRICK A. JUNEAU, in his official capacity as Claims
Administrator of the Deepwater Horizon Court Supervised Settlement
Program administering the Deepwater Horizon Economic and Property
Damages Settlement Agreement, and in his official capacity as Trustee of the
Deepwater

                 Defendants - Appellees

                                                     2
                                            No. 13-30315

--------------------------------------------------------------------------------------------------
Consolidated with 13-31220

IN RE: DEEPWATER HORIZON
--------------------------------------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON
SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY,
INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA
CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER
FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD
LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on
behalf of themselves and all others similarly situated; HENRY HUTTO;
BRAD FRILOUX; JERRY J. KEE,

                 Plaintiffs - Appellees

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP PIPE LINE COMPANY,

                 Defendants - Appellants

-------------------------------------------------------------------------------------------------

Consolidated with 13-31316

IN RE: DEEPWATER HORIZON
------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON
SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY,
INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA
CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER
FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD
LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on
behalf of themselves and all others similarly situated; HENRY HUTTO;
BRAD FRILOUX; JERRY J. KEE,

                 Plaintiffs - Appellees

                                                     3
                                    No. 13-30315


v.

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

              Defendants - Appellants
                           _______________________

                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                               __________________

                  ON PETITION FOR REHEARING EN BANC

                      (Opinions 732 F.3d 326; 744 F.3d 370)

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
ORDER:
      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (FED. R. APP. P.35 and 5TH CIR. R. 35), the Petition
for Rehearing En Banc is DENIED.∗
      In the en banc poll, five judges voted in favor of rehearing (Judges Jolly,
Jones, Clement, Owen, and Elrod) and eight judges voted against (Chief Judge
Stewart and Judges Davis, Dennis, Prado, Southwick, Haynes, Graves, and
Higginson).
ENTERED FOR THE COURT:
 /s/ Leslie H. Southwick
Leslie H. Southwick
United States Circuit Judge



∗ Judge Smith is recused and did not participate in the consideration of the petition for
rehearing en banc.
                                           4
                                      No. 13-30315

EDITH BROWN CLEMENT, Circuit Judge, dissenting from Denial of
Rehearing En Banc, joined by JOLLY and JONES, Circuit Judges: 1
       This court’s denial of the petition for rehearing the Business Economic
Loss panel decision en banc misses the last opportunity for this court to clarify
its prior Deepwater Horizon decisions and to enforce a proper application of
standing and causation. The panel opinion conflicts with prior precedent, and
“the proceeding involves . . . questions of exceptional importance.” Fed. R. App.
P. 35(b)(1). En banc rehearing should have been granted. We respectfully
dissent.
                                             I
    While this court may convert a petition for rehearing en banc into a petition
for panel rehearing, the approach is typically reserved to grant some requested
relief to the petitioner. See In re Scopac, 649 F.3d 320 (5th Cir. 2011). Judge
Southwick’s new order essentially serves as a second opportunity to
extrapolate on his rejection of BP’s position, apparently in an attempt to
coalesce the reasoning between his and Judge Dennis’s prior opinions in our
latest take on this tortuous case. See In re Deepwater Horizon, No. 13-30315,
2014 WL 841313 (5th Cir. Mar. 3, 2014) (“Deepwater Horizon III”). The new
order does not withdraw the panel’s opinion or provide different legal analysis,
it merely adds additional discussion. This discussion is not responsive to any
motions filed by BP and does not change any holding from the prior panel
opinion. It also has no effect on the related panel opinion in 13-30095. The
failure to consolidate these cases has led to continued confusion in appeals that
are inextricably intertwined and related.




1Judge Garza would join this dissent if he had been able to vote as an active member of the
en banc panel.
                                             5
                                         No. 13-30315

                                               II
         This court’s decisions thus far have suffered from divided reasoning and
a complete refusal to address the critical decision of the district court. Our
first decision remanded to the district court to address the issue of matching of
revenues and expenses and for consideration of “the issue of causation.” In re
Deepwater Horizon, 732 F.3d 326, 347 (5th Cir. 2013) (“Deepwater Horizon I”)
(Southwick, J., concurring).           On remand, the district court addressed the
matching issue but not causation. Order at 1, In re Oil Spill by Oil Rig
Deepwater Horizon in Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D.
La. Oct. 3, 2013). BP appealed this refusal to address causation on November
21, 2013.
         On December 2, 2013, we held that the district court erred by not
considering arguments on causation. The district court proceeded to address
those arguments and released an order on December 24, 2013. Order, In re Oil
Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, MDL
No. 2179 (E.D. La. Dec. 24, 2013). In that order, the district court held “that
judicial estoppel bars BP from advancing its current interpretation of the
Settlement Agreement.”               Id. at 12.        The lower court, broadly and
unambiguously, found that BP’s prior statements barred it from raising any
arguments concerning causation, or even “similar arguments.” 2

2   The district court held,
         that BP is judicially estopped from arguing (1) that Exhibit 4B is not the
         exclusive means of determining whether a business economic loss is “as a
         result of’” of [sic] the Deepwater Horizon incident for purposes of the
         Settlement, including the Class Definition; (2) or that the Settlement
         contains, implicitly or explicitly, a causation requirement other than Exhibit
         4B; (3) or that satisfying Exhibit 4B does not establish under the Settlement
         an irrebuttable presumption that a business’ economic loss was “as a result
         of” the Deepwater Horizon Incident; (4) or making similar arguments. As a
         corollary to this ruling, the Court finds that whether a business economic loss
         is “as a result of” the Deepwater Horizon Incident for purposes of the


                                                6
                                      No. 13-30315

       Over my objection, the panel declined to come to a definitive ruling on
this critical issue. See Deepwater Horizon III. Instead, Judge Southwick’s
opinion relied on an attestation form that the lower court never discussed or
addressed in the entirety of its 43-page order. But this analysis was never
explicitly agreed to by Judge Dennis, whose concurrence described the
procedural history and then essentially concurred in the judgment only. 3
While by implication Judge Southwick’s consideration of the merits of BP’s
arguments signified a rejection of the judicial estoppel ruling, Judge Dennis
apparently wanted to affirm the district court’s ruling on estoppel alone.
Reading the published opinions together with the district court’s orders, it was
clear that no two judges agreed on any legal basis for affirming. Because there
was no definitive ruling on judicial estoppel in the panel opinion there was
clear legal error that it was the duty of this court en banc to address. After a
close vote, this court declined to do so.
       Judge Southwick now submits yet another revised order, styled a denial
of a petition for panel rehearing. This apparent attempt to meld the reasoning



        Settlement is determined exclusively and conclusively by Exhibit 4B.
Id. at 18.
3 The operative portion of Judge Dennis’s concurrence reads,

        Although I continue to adhere to the views I expressed previously in this
        case, I now join Judge Southwick in affirming the district court's December
        24, 2013 order interpreting the settlement agreement as written and
        declining to add, by judicial gloss, any additional requirements, procedures,
        or other provisions not contained in the text of the settlement agreement and
        consent decree and its attached exhibits. I agree with Judge Southwick that
        BP’s renewed motion for an injunction should be denied and that no
        injunction against the payment of business-economic-loss claims shall
        continue. I also agree that we are bound by the certification panel's Article
        III, Rule 23, and Rules Enabling Act rulings in its January 10, 2014 opinion
        and decision. Accordingly, for these reasons, I concur in the above described
        conclusions reached by Judge Southwick and in the judgment he has written
        for the majority of this panel.
Id. at *8.


                                             7
                                       No. 13-30315

between his and Judge Dennis’s prior opinions is too little too late and leaves
the essential results unchanged: the class of people who will recover from this
settlement continues to include significant numbers of people whose losses, if
any, were not caused by BP. Our court’s decisions would allow payments to
“victims” such as a wireless phone company store that burned down and a RV
park owner that was foreclosed on before the spill. 4 Left intact, our holdings
funnel BP’s cash into the pockets of undeserving non-victims.
       These are certainly absurd results. And despite our colleagues’ continued
efforts to shift the blame for these absurdities to BP’s lawyers, it remains the
fact that we are party to this fraud by (1) adopting an unreasonable
interpretation of the Settlement Agreement to remove any requirement of
causation, and (2) certifying a class by ignoring the fact that although
causation and traceability were initially written into the Settlement
Agreement, the Claim’s Administrator’s interpretation governing what would
actually happen meant that Article III requirements would be ignored in the
class settlement’s execution. 5 The dissent to the denial of panel rehearing for
the certification panel, 13-30095, explains in greater detail this elimination of
causation.
       The judicial power extends only to actual cases and controversies even
in a class action and even in a settlement. Lewis v. Casey, 518 U.S. 343, 349

4 60 Minutes: BP cries foul in massive oil spill settlement (CBS television broadcast May 4,
2014) available at http://www.cbsnews.com/videos/bp-cries-foul-in-massive-oil-spill-
settlement/.
5 However, Judge Southwick’s order “conclude[s] that causation is never abandoned as a

requirement” and BP is thus implicitly not judicially estopped from continuing to argue
causation in the district court, or to the Claims Administrator, for the settlement globally or
against individual fraudulent claims. As I read this latest opinion, BP may seek recovery
for losses due to fraud in individual actions, and government prosecutors may pursue those
who submit fraudulent claims. Although not as protective as making clear that the Claims
Administrator should not pay claims that were not “a result of” the Deepwater Horizon
spill, a majority of the en banc court apparently seems to believe that those protections are
still in place.
                                              8
                                  No. 13-30315

(1996). Judge Southwick’s analogy to a stipulation supports an argument for
judicial scrutiny, not judicial abdication. Even with the assent of all parties,
judges still have the obligation to reject stipulations that are not factually true.
See People v. Marling, 172 Cal. Rptr. 109 (Ct. App. 1981) (“Although a rose is
a rose, a cactus is not and a stipulation does not make it so.”) They may also
do so because the parties cannot stipulate to law: they cannot force a court
through stipulation “to decide a case according to a body of law that is nowhere
in force.” Cent’l Soya Co. Inc. v. Epstein Fisheries, Inc., 676 F.2d 939, 941 (7th
Cir. 1982) (Posner, J.); see also Reeg v. Shaughnessy, 570 F.2d 309, 314 (10th
Cir. 1978) (“It is settled that parties cannot stipulate that the law of a forum
will not control, but that other law will control.”) This purported stipulation
has ended up being either factually or legally untrue. It either trumpets one
lie (businesses operating hundreds of miles from any sign of befouled water
had injury “caused by” BP) or another (a party can stipulate away the legal
requirement of causation). But parties cannot stipulate to force courts to
decide cases based on “a body of law that is nowhere in force” or to declare a
cactus a rose. There are limits on party autonomy and judicial efficiency,
because a stipulation, like any other judicially enforced agreement, derives its
force from the power of the court and its enforcement should not “discredit the
judiciary.” Charles Alan Wright and Kenneth W. Graham, Fed. Prac. & Proc.
Evid. § 5194.
                                        III
      “The party invoking federal jurisdiction bears the burden of establishing
[the elements of standing] . . . with the manner and degree of evidence required
at the successive stages of litigation.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). While in the certification of a class action that will proceed to
trial a lesser inquiry into standing may be required, Kohen v. Pacific


                                         9
                                 No. 13-30315

Investment Management Co., 571 F.3d 672 (7th Cir. 2009), in a settlement class
such as this one, the standing inquiry must take into account the fact that
inclusion in the class means recovery. Denney v. Deutsche Bank AG, 443 F.3d
253, 264 (2d Cir. 2006) (“[N]o class may be certified that contains members
lacking Article III standing. The class must therefore be defined in such a way
that anyone within it would have standing”). While the Kohen approach to
standing has been used in the Seventh, Ninth, and Third Circuits, other cases
in the Eighth, Seventh, and Ninth have assessed cases under the Denney
formulation. In re Deepwater Horizon, 739 F.3d 790, 800-01 (5th Cir. 2014)
(“Deepwater Horizon II”). These different approaches, sometimes used by the
same circuit, reveal the deep confusion in this area of class action standing.
While our en banc court had the opportunity to address and clarify this issue
for our circuit, confused as it was by two separate panel opinions on one
essential, constitutional issue, it has declined to do so. Admittedly, even this
articulation would not have been enough for our sister circuits considering the
deep split on this issue. Another court surely must resolve this.
      We respectfully dissent.




                                      10
