     Case: 18-30643         Document: 00514885425         Page: 1    Date Filed: 03/22/2019




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


                                        No. 18-30643                               FILED
                                                                             March 22, 2019
                                                                              Lyle W. Cayce
CLAIMANT ID 100022655,                                                             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. 2:18-CV-3557


Before GRAVES and OLDHAM, Circuit Judges. †
PER CURIAM:*
       Jesse Lecompte, Claimant ID 100022655, sought compensation under
the Deepwater Horizon Court Supervised Settlement Program arising from the
failure of his dry dock business. The settlement administrator denied his
claim. The District Court denied discretionary review. We affirm.



       †   This case is being decided by a quorum. See 28 U.S.C. § 46(d).
       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30643
                                       I.
      Prior to April 2010, Lecompte operated a dry dock business in Chauvin,
Louisiana. Shrimp fishermen used the dry dock to conduct repairs on their
vessels. The Deepwater Horizon exploded on April 20, 2010. At some point in
April 2010, Lecompte ceased operating his dry dock business.
      Lecompte filed a Business Economic Loss (“BEL”) claim under the
Economic and Property Damages Class Action Settlement (“Settlement
Agreement”). But the Claims Administrator—who resolves claims in the first
instance—reclassified Lecompte’s dry dock claim under the Failed Business
Economic Loss (“FBEL”) framework.            The FBEL framework applies to
businesses that “ceased operations and wound down” after May 1, 2010, and
before December 31, 2011. See Settlement Agreement Ex. 6 ¶ I.
      Upon review of Lecompte’s evidentiary submissions, the Claims
Administrator found Lecompte ceased operating his dry dock business prior to
May 1, 2010. The business was thus ineligible for compensation under the
FBEL framework. The Claims Administrator therefore denied Lecompte’s
claim and his request for reconsideration. A Settlement Program Appeals
Panel affirmed.
      Lecompte sought discretionary review in the district court as permitted
under the Settlement Agreement, and the district court denied review.        Our
Court has determined we have jurisdiction to review the district court’s orders
regarding claim determinations under the collateral order doctrine. See In re
Deepwater Horizon, 785 F.3d 1003, 1009 (5th Cir. 2015). We must therefore
decide whether the district court abused its discretion in denying review.
                                       II.
      This is not our first opportunity to consider claims for compensation
under the Settlement Agreement.        We have said “[i]t is not an abuse of
discretion [for the district court] to deny a request for review that ‘involve[s]
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                                 No. 18-30643
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.’ ” Claimant ID
100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017) (per
curiam) (quoting In re Deepwater Horizon, 641 F. App’x 405, 410 (5th Cir.
2016)). But “[a] district court abuses its discretion if an Appeal Panel decision
not reviewed by the district court contradicted or misapplied the Settlement
Agreement, or had the clear potential to contradict or misapply the Settlement
Agreement.” BP Expl. & Prod., Inc. v. Claimant ID 100094497, 910 F.3d 797,
800 (5th Cir. 2018).
                                       A.
      We consider first whether the Claims Administrator erred in denying
Lecompte’s claim under the FBEL framework. Lecompte does not contend the
Claims Administrator or Appeals Panel misinterpreted the Settlement
Agreement’s FBEL framework as a matter of contract law. On this question
his dispute with the Claims Administrator is purely factual.
      The Claims Administrator found Lecompte ceased operating his dry dock
business prior to May 1, 2010. Lecompte appears to admit the business ceased
operations in April 2010. But he says he did not wind down his business until
2011. In short, Lecompte thinks the Claims Administrator misinterpreted his
evidence.
      We do not review such factual disputes de novo; instead, we consider
whether the Claims Administrator’s factual determination was an abuse of
discretion. See Claimant ID 100212278, 848 F.3d at 410–11. BP points to the
Settlement Program’s policy that “the Settlement Program will apply
professional judgment in determining” a business’s “actual failure date.”
Policy 506 v.2 ¶ II.B.a. That is obviously a deferential standard.


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                                     No. 18-30643
      Lecompte has not challenged Policy 506. Nor does he explain how the
Claims    Administrator     failed    to   exercise    “professional   judgment”    in
determining the dry dock business failed before May 1, 2010. As BP points
out—without contradiction from Lecompte—the dry dock business apparently
did not file a tax return in 2010. That supports rather than undermines the
Claims Administrator’s judgment. The district court therefore did not abuse
its discretion in declining to review the Claim Administrator’s determination
of the business’s actual failure date. Claimant ID 100212278, 848 F.3d at 410.
                                           B.
      We turn now to whether Lecompte’s dry dock claim should have been
considered under the general BEL framework instead of the FBEL framework.
      BP defends the reclassification of Lecompte’s claim (from the BEL
framework to the FBEL framework). BP says Lecompte’s claim was properly
reclassified because the BEL framework does not apply to any business that
failed prior to December 31, 2011.         BP does not point to anything in the
Settlement Agreement itself that dictates that result. Instead, BP again points
to Policy 506. That policy says the general BEL framework does not apply to
a business “that ceased operations and wound down . . . prior to December 31,
2011.” Policy 506 v.2 ¶ II.A. Lecompte admits he “wound down” his dry dock
business “during 2011.” BP therefore argues Policy 506 prevents him from
making a general BEL claim and requires reclassification of the claim under
the FBEL framework.
      There are reasons to doubt BP’s reading of Policy 506. Elsewhere, that
policy clarifies the status of businesses that fail too early to qualify as a “Failed
Business”: “[A] claimant that reports that it failed on [rather than subsequent
to] May 1, 2010 . . . does not meet the definition of a Failed Business . . . under
the Failed Business Framework and would be treated as a General BEL
claimant . . . .” Policy 506 v.2 ¶ II.B.a (emphasis added). Taking this context
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                                  No. 18-30643
into account, it seems even Policy 506 contemplates applying the general BEL
framework to a business that failed on or before May 1, 2010—like Lecompte’s
dry dock.
      Moreover, Policy 506 appears to say the BEL framework is the generally
applicable one—unless the claim falls in one of the exceptions. See Policy 506
v.2 ¶ II.A. A “failed business” is one exception, so the BEL framework “does
not apply to . . . failed businesses.” Settlement Agreement Ex. 4C at 1 n.1. But
as the Claims Administrator found (and we affirmed above), Lecompte’s dry
dock is not a “failed business” because it failed before May 1, 2010, not after.
See Settlement Agreement § 38.68 (“Failed Business shall mean a business
[that failed] subsequent to May 1, 2010 . . . .”). Because the exception for failed
businesses does not apply to the dry dock, the Settlement Agreement and
Policy 506 suggest the generally applicable BEL framework does.
      We have said the district court abuses its discretion if it fails to review
“a contradiction or misapplication of the Settlement Agreement.”               See
Claimant ID 100250022 v. BP Expl. & Prod., Inc., 847 F.3d 167, 169 (5th Cir.
2017) (per curiam). The district court may someday be duty bound to address
the meaning and validity of Policy 506. But today is not that day. Lecompte
neither raises this issue nor points to evidence he would have been able to
recover under the general BEL framework.
      An appellant’s brief must provide “citations to the authorities and parts
of the record on which the appellant relies,” FED. R. APP. P. 28(a)(8), and
Lecompte’s brief falls far short of that standard. He cites only a single case,
and he cites it for the proposition that we have appellate jurisdiction. See In
re Deepwater Horizon, 785 F.3d 986 (5th Cir. 2015). More importantly, he fails
to address Policy 506 and BP’s contention it prevents his claim from being
considered under the general BEL framework.


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                                   No. 18-30643
      Even if Lecompte had shown that BP or the Settlement Program
misinterpreted or misapplied the Settlement Agreement, he has not shown he
would be entitled to general BEL compensation in any event. Lecompte says
his dry dock business could have qualified for BEL compensation under the
Settlement Agreement’s “Decline-Only Revenue Pattern.” Lecompte mentions
the first two requirements for “Decline-Only” causation: (1) a “Downturn”; and
(2) “[s]pecific documentation identifying factors outside the control of the
claimant that prevented the recovery of revenues in 2011.”              Settlement
Agreement Ex. 4B ¶¶ II.C.1–2.         But there is a third requirement—the
“Customer Mix Test.” See id. ¶ II.C.3; Claimant ID 100261758 v. BP Expl. &
Prod., Inc., No. 18-30173, 2019 WL 507588, at *2 (5th Cir. Feb. 8, 2019) (per
curiam). The claimant has the burden to submit documentation sufficient to
satisfy this test.    See Claimant ID 100261758, 2019 WL 507588, at *3.
Lecompte does not mention the Customer Mix Test, argue he satisfied it, or
point to any documentation in the record to support such a showing. See FED.
R. APP. P. 28(a)(8). He has forfeited this argument.
      Lecompte also suggests he could be entitled to compensation for spill-
related contract cancellations. The “spill-related cancellations” framework,
however,   “only     establishes   causation   for   the    specific   cancellations
substantiated by the claimant” and requires evidence a “specific contract” was
cancelled. Settlement Agreement Ex. 4B ¶ II.D. Lecompte argues contracts
were cancelled due to the oil spill, but he points to no evidence supporting this
claim. He cites affidavits from about half a dozen onetime customers, but all
they say is that the customer did not use the dry dock in 2010 due to the oil
spill—not that a contract was in existence and then cancelled. Moreover, even
if customers had contracts and canceled them, Lecompte does not point to
evidence showing how much revenue he lost as a result. See FED. R. APP. P.
28(a)(8). He has forfeited this argument as well.
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                          No. 18-30643
                          *     *        *
 The district court’s judgment is AFFIRMED.




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