     Case: 18-31048      Document: 00515133488         Page: 1    Date Filed: 09/26/2019




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

                                                                                  FILED
                                                                            September 26, 2019
                                      No. 18-31048
                                                                               Lyle W. Cayce
                                                                                    Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

               Requesting Parties - Appellants

v.

CLAIMANT ID 100296061,

               Objecting Party - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-7420


Before WIENER, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       This appeal comes to us following an award granted under the
Deepwater Horizon Economic and Property Damages Settlement Agreement
(“the Settlement Agreement”). BP Exploration & Production, Inc. (“BP”)
appeals the district court’s denial of its request for discretionary review of the
award granted to Claimant ID 10029601 (“the Claimant”).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31048
       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.”
       Here, the Claimant, the former owner of a professional basketball team,
submitted a BEL claim in April 2013. In October 2017, the Claims
Administrator issued a final Eligibility Notice for the Claimant. BP appealed
the award to an Appeal Panel in December 2017. The Appeal Panel
unanimously adopted the Claimant’s final award proposal. BP requested
discretionary review of the Appeal Panel’s decision by the district court, but
the district court declined to review the award. BP now appeals that decision
to this court.
       BP contends that the district court abused its discretion by declining to
review the award because the CSSP erred when it characterized (1) specific
expenses as fixed rather than variable and (2) the sale of a draft pick as a
“negative salary expense” rather than as a gain from the sale of an asset. BP
also contends that the Appeal Panel erred by granting the Claimant an award
that was more than the CSSP’s final Eligibility Notice.
           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.” 1




       1 Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 316–17 (5th Cir. 2016)
(internal quotations omitted).
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                                     No. 18-31048
             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.
             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.” 2

          B. Analysis
      BP contends that the CSSP made two errors. First, BP complains that
the CSSP erred by classifying some expenses as fixed rather than variable. BP
argues that expenses for broadcasting, catering, and arena staffing, among
others, should be classified as variable expenses because they fluctuate based
on the number of basketball games played. Second, BP complains that the
CSSP erred by treating the sale of a draft pick as a “negative salary expense”
instead of as the sale of an asset.
      BP further contends that the Appeal Panel erred by picking the higher
of the two award amounts in the Claimant’s Final Proposal because that
amount was higher than the CSSP’s “most recent eligibility notice.” The



      2 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)).
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                                       No. 18-31048
Appeal Panel stated that, “Although the Claimant’s Final Proposal exceeds the
Program’s final Eligibility Notice award, the Baseball Process provides, in this
appeal, that the Panel shall select the Final Proposal closest to the correct
award.” 3
       BP’s contentions are related to its allegation that Claimant’s losses were
not caused by the oil spill.
               “The Settlement Agreement contained many compromises.
       One of them was to provide in only a limited way for connecting
       the claim to the cause.” Nevertheless, we have also noted that “we
       are reluctant to say that all claims must be accepted no matter how
       clear the absence of the required nexus may be.” . . .
               In addition, after the district court denied review, we issued
       two decisions that inform the causation requirement. See BP Expl.
       & Prod., Inc. v. Claimant ID 100281817, 919 F.3d 284, 288 (5th
       Cir. 2019)(noting that “[o]nly claimants who suffer unexpected
       damages can submit an Individual Economic Loss Claim” when
       concluding that a basketball player who earned less in 2010 than
       2009 because his contract was front-loaded did not meet the
       attestation requirement); BP Expl. & Prod., Inc. v. Claimant ID
       100141850, 919 F.3d 887, 891 (5th Cir. 2019) (declining to find an
       abuse of discretion but noting that “where . . . the Claimant’s
       attestation plainly gives rise to suspicion or BP has presented
       credible evidence of a sole, superseding cause for a claimant’s loss
       . . . an investigation into the plausibility of the attestation may be
       warranted”).
               Because the district court did not have the benefit of these
       decisions when it ruled and because we are not the factfinder, we
       conclude that the district court should review this argument in the




       3 “Under the baseball process, ‘the Claimant and the BP Parties exchange and submit
in writing to the Appeal Panelist or Appeal Panel their respective proposals . . . for the base
Compensation Amount they propose the Claimant should receive’ and if the parties do not
reach an agreement, ‘the Appeal Panelist or Appeal Panel must choose to award the Claimant
either the Final Proposal by the Claimant or the Final Proposal by the BP Parties but no
other amount.’ Agreement § 6.2.” In re Deepwater Horizon, 785 F.3d 986, 989 n.1 (5th Cir.
2015).
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                                     No. 18-31048
      first instance and determine whether to remand it to the Claims
      Administrator for additional factfinding. 4

           C. Conclusion
      For these reasons, we REVERSE the district court’s denial of
discretionary review and REMAND for proceedings consistent with this
opinion.




      4  BP Expl. & Prod., Inc. v. Claimant ID 100238083, 2019 WL 3294088, at *3 (5th Cir.
July 22, 2019) (quoting In re Deepwater Horizon, 744 F.3d 370, 378 (5th Cir. 2014)).
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