and the reason that we seek this remedy however is foundational the question in this appeal at bottom is what procedural safeguards are protected by the deepwater horizon settlement we respectfully submit that there are  least three here that are fully protected by the settlement and that were not followed in this particular claim first there is an obligation to treat like claims like second there is an obligation that facts will be found by the entity that has institutional ability to find facts and third that decisions should be reasoned in that the person making them gives the reasons for why the breach decision that they did mr nielsen who wrote the procedural rules of w seventy five has two things it says this is when you remain and you re mad if you can't if the evidence does not support one of the two words or if the evidence does not allow the court's know if the supports one of the two awards oh look there's on the web page is evidence that they have a location in overseas in brussels and we have employees that claim to be employed by them let me ask you a question about that because i mean i'm not an expert in business but this is those are sales people in belgium and sales people in idaho or wherever it is isn't it quite often the case that a salesperson doesn't have to have a physical office the sales person can work out of his home or out of a multi purpose office and that that is not necessarily a facility first of all of take that steps one of the two employees at issue i mean in terms that at some point in your briefing you say this rule seventeen d five out and just be abandoned or something which seemed to me out of or not i have a budget that's how we came across that was not our intent our intent is only that rule seventy five to the extent that it contradicts the settlement well then of course the settlement is going to have to control i don't think i don't see any conflict here at all i thought as we said in our brief i think that we are fully support here being seventeen the five which by the way didn't come into this appeal i don't think i don't you didn't explain how the rule contradicts the settlement either as far as i can tell but except for you general general argument but  because it doesn't your honor i don't think there is a conflict between rule seventy five ok and art and i'll leave that alone ok but you got a seventeen the five minute says the panel may remand only if the new document which i  or the information in the record is not sufficient to support well the information in the record is sufficient to support what they were claiming surely so you'd have to go to a would have to show it seems to me that this these new documents would change the outcome of the determination and i'm just suggesting that when the president of the company puts in an affidavit and says wait a minute we have only one facility you really are you really saying that he's lying which is if there are such a big company is they appear to be that's a pretty strong allegation again i was asking for the common sense of this i don't know i'm certainly not trying to say that they're lying i am saying that different people look at different factions in different ways so here it is here's a possibility we know that there is some relationship between e u so we know that there are some relationship between these two entities we also know that the claimed administrator had no idea that this other entity existed when that happens now it could be that they are  entity it could be that they are related entities in that they don't deal in arm's length relationships with each other you factor of commercial laundry quitman correct correct your honor all right some fellow who is the international sales rep who occupies his you know if he operates out of his home or multipurpose office right  probably not if that's it would depend it could depend on this decision i'm accepting is it unless you've had more maybe you could have had a google earth something spy out what this location might be in brussels but that's but the but that's why i'm suggesting if you're really concerned about this you ought to have a case where it's a little bit more dramatic failure to remand i mean that shouldn't there be some kind of common  i don't think we're we're cooking up defenses here with respect your honor but here's here's again the concern we know that there is a facility i've not heard them ever suggest that the facility in brussels is somebodies home  i've never heard that suggestion affidavit certainly don't say that they've said it's a different company known are incorrect they said it's a different company and that's a different question whether it's a physical building i'm assuming it's a subsidiary it's i'm assuming that in your favor but but still and all the guy says it's a separate company it's well that's the thing so again you know look at that look at the affidavits here they're very clean and they're written i think with a lawyers position i'm not saying that derogatory we know they say for instance that the foreign subsidiary or the foreign entities profits and losses are not reported on their profits in law statements sure ok but does that mean that you are dealing with with them are you sharing the expenses of employees this is sorts of things that we would expect to come on how how could this affect their claim what for instance this is a great questions is a lake effect their claim if in fact these two individuals are shared employees are being paid by polls we'd want to know their expenses because those expenses then be on the other other other into these books and not their books and because the profit test is how much difference there is if you have expenses that are not counted on your books because they're often your related parties books well then the award is going to be to lie that's included as employees the domestic people were included as employees director john are correct but there's the also the two folks in brussels and we don't know anything about them and for us we look at this and you have any reason to think that they are anything other than salespeople yes your honor one of them is listed as an engineer on the linked in page well back and do you have any reason to believe that they are anything other than sales people there one other can't can't you go out and i ask you being b p s people go out now asked the locals to find out whether this is where this is really an international concern in the sense that you're talking about with facilities and i suppose that we could up to this point in the process of the senate we've never we've never had to what we've done in back to the appeal panel and they say look there are real questions here that and sometimes they'll come back with an explanation we said ok all right we've asked for a date we think you're working you have your invoice is you were ok we understand here we said at trying to see if you were on the brief and we end that was a case where the people panel did send it back to decide if these facilities in georgia new york were actually facilities or not it's your honor and they said now and you'll still appeals are going to have different facts we took that position i wasn't one of the lawyers on that one but i know the cases are referring to which at that position because we thought as a matter of law that they urged as to the definition of facility no the court respectfully disagree that's that's  fine but here the problem is we have no idea what the facts are over there because nobody has looked and that seems very problematic to us now it's possible the facts are to come out and there's nothing there and which case this case is going to be over with respect the court has issued a number of reasons why you might say there's an error not an abuse of discretion one is if there's a split we've identified a bunch of said this is almost automatic that you're supposed to send it back and you get this is a split on whether you a material split it goes back and hear this one that's not what happened i suppose b p is going to be to say nothing of the court involved in this litigation for years and years to come since there are hundreds thousands end is in sight and that's one of the reason why concern with this one is i'm afraid they're cutting corners because the end is so close what do you the big why is the end close because we're we've almost exhausted all of the claims in the settlement program to wait until the end result many of the largest claims which often happens to the most complex ones so we have all these ones kind of at the end a lot of the earlier ones are already complete so now we're stuck with all of this at the end we want to court just remember the denominator here there really are hundreds of thousands of claims we are not appealing willy nilly you know we might have disagreements on particular claims but that's not our intention here that's what i wasn't exactly what i was asking you i was asking whether us s you were on a panel that decided almost the same set like a factual situation just last december and although b p tried to dress up a multifamily case as a legal issue the court correctly found that it was a purely factual issue that was presented and found that the district court did not abuse its discretion in that case that cases some similar to this that i should stop right here but i'm a lawyer so but i'm going to not publish them it's not going on  showed that there was no other facility built in own operate or lease another facility in belgium we showed that it was a separate and distinct corporation they did not contravene any of those issues now they've asked for a remain and and but in this looking at this office and seeing what people are doing and i mean it seems like you're saying we win because we say we won we can we got the affidavit from the vice president whatever and b p had no opportunity to really fill that out w is that there's a service organization over there that provides customer support as i understand it form for a machinery that might be sold overseas well obviously but is that sort of like authorized distributors in the united well what i know is that it's a separate corporation that i know it's go ahead and i know that under the terms of syllabi which we're dealing with here where there was a multi fuel still there is a single facility we met that burden showing that we didn't own operator lease any other premises anywhere other than the premises that we have in kenner louisiana where everything is produced and the fact that you might have a remote employee somewhere if the rules provide international there's no employee that works in kenner louisiana and also works outside of canada easy as far as i know no i think our employees are i mean the people who manufacture all the equipment are  people around the world who do sell it wait a minute you said you have a small number of employees that work remotely that's correct all of whom work through at well they may be and i don't know because they were well that's creative but i mean that but that's what it is but it boils down to in this situation it is a factual issue that was presented to the appeals panel the appeals panel had the right to either that to the to the settlement program or in this situation they only had to remain did if two things occurred and appeal panel found that neither of those things occurred so the people panel had the right to receive evidence as they've done in many cases the right to make credibility determinations and the right to make a decision as to what was their corrective correct result as to whether to accept or b p s determination the final proposal and that's what they did a water horizon your honor i was brought on for appeal i'm not involved in the operations or workings of elenor miller but i imagine they had a lot of sales that didn't go through for some reason or other that was located and they met the causation requirement under the curve properly and accountability or affidavits which was a credibility and factual determination and whether the appellate panel had erred in not remaining this case to to the summer program those are the only things that were presented to the district court i'm discretionary review the only things and in that situation the district court was well within its discretion to make a determination of the factual issues or to decline review because they involve factual issues and so was that in front of the appeals panel like what did they how did the appeals panel reconcile in their zone determination as to your your client's injuries with respect to all of these employees i mean that's not a sales person it says vice president what would be some of these people say sales sales i'm not sure your honor but this is regional sales manager that i understand but this one says vice president at polo helen at your client's corporation what was that what was the reason decision making that would suggest that we don't need to consider that honor i can't tell you that but i can tell you that those are the issues that were presented to the appeal panel they had the right to make that determination and they dead and then what was brought to the to the district court was whether there was an abuse you know whether they whether there was an of discretion on their part in making that determination but i think that what has been brought to this court is sure of settling whether there was an abuse of discretion by the district court in not in declining to do this discretionary of you suppose one appeals panel says we find record evidence that there's a vice president who works in outside of the zone area therefore we're going to remain at it for further factual development in a second appeals panel says we see that there is a vice president who works outside of his own area but we're not going to remind it would you agree that that is an abuse of discretion no i don't think so to be a sense crushing i think it's determination on the particular facts of the particular case which is what the appeal of saying we're allowed to do you  you just disagree fundamentally that the appeals panel has to treat identical facts i just gave you my hypothetical the facts are the same it's a vice president for a corporation working outside of his own area the fact that there is no constraint on the way that the appeals panel works with respect to two different cases presenting the same i think that you know you say they're identical facts i think the facts are never identical in a situation like like these that are been presented in this case so that people pamela's vested with that the right to make those determinations on its own i understand i'm trying to understand i'm not getting into the facts what i don't understand is the legal principle that you are divine him out of the system that dispenses millions of dollars and what i'm asking you is if there were a case where there's a vice president who works that's out of the zone area and that gets a remain and because that was in front of the claims administrator in the first instance and then there's a second case where a vice president working outside of his own area and it does get to remain and what is the legal principle that comes out of that district court as to whether you know whether there has been any kind of an error that has been committed in violating the district in discretionary review rules and whether the pit people panel whether they should have remained based on what those appeals panel rules on or in this situation it doesn't provide for that and what the district court with the what b p has done in this appeal is bring up issues that were not presented to the district court they have not brought up if they wanted to bring up this issue of they were occurring issue that every case should be remanded when there's new evidence presented at the appellate panel they should have brought that up to the district court and they did not they did not bring up to the district court that there was any kind of split in  the appellate panels on with respect to whether or email it was absolutely required any time new evidence was presented none of that was presented to the district court for review yet at the appeal here at the fifth circuit they're saying the judge bar abused is the sit in is discretion is case abuse this is crushing in this case on issues that were never presented to him they never presented to him that there was any kind of a recurring issue on whether re man must always be granted when new evidence is presented when a new affidavit affidavits are presented at the appeals panel level they never brought to the to judge our base of attention that there was a split supposedly with respect to whether a remains were being required by certain appeal panels and not by other appeal fails none of that was brought in under the rules of the discretionary review rule seventeen if they had an issue that they thought had an impact and was met merited discretion review they had to have a clear statement of how the appeal panel failed to comply with the settlement agreement they didn't do that with respect to the recurring issues and split panel decisions they didn't ask didn't explain why extraordinary relief should have been granted and they didn't ask for relief sought what they're telling us here in this court is that any time there is new evidence new affidavits submitted to the appeal panel that hold up appeal panel you cannot make a decision on that which completely contrary to the discretionary rules and not discretionary rules but the appeal panel rules completely contrary to that so our position is that was never brought to the attention of judge barba and under this court's or under discretionary review rules that's an issue that is now before us about the recurring issues about the you know whether remains absolutely required when new evidence is submitted that has been waived and it wasn't brought to the discretion that wasn't brought to the judge district judge is just attention it wasn't brought was an issue presented there in under six circuit rules is an issue isn't presented to the district court it can't be prevented that's a court of appeal it's waived the question i'm asking you was presented to judge harvey right because i have their record cites for the so record of record on appeal six twenty as the printout of the linked in page of the employee that i'm proposing to look at this was presented to  judge along with the argument but this should be remanded just like other cases have been remanded and what i understood your argument in your brief to be was much more modest which was simply that the appeals panel in implicitly judged r b a by denying discretionary review determine that this was not a material dispute right b in light of the affidavits that your client filed but that's a very different proposition than it was never presented to him and my understanding is it was in fact presented to him he did in fact have the op he need to decide whether to what extent having a vice president of a corporation outside of his own area raises a question when it was brought to me it was brought to his attention they request an improvement of this particular case but what they didn't say was that this was a recurring issue as to whether every man or when there's new evidence presented affidavits presented whether every matter has to be sent back to the to the summer program for determination that was never presented to judge what it was in this case about what they're telling him that there was a man from milwaukee or remote personnel and so because of that you have to take a look at this but that is exactly why he's got the discretion in cases such as this to not act she declined to exercise his discretion and reveal matter and that's what interview and i and i and it is quite permissive that that makes some sense but what i'm trying to understand is the legal principle that would prevent having the next case where there is a regional vice president that b p discovers outside of the zone area an issue that was not presented to the judge garvey about this was mandatory remain and that required supposedly every of every appeal panel to send matters back to the summer program that was never presented judges are being we think they know they've known from the outset that this was a matter that was purely a factual dispute as to whether this man from milwaukee or banned from wherever had an impact on this particular case but we do know that the rules that set up what a facility for six and seven did speak to the issue that the remote the location of the employee does not determine where the facility is located and it from the evidence presented the only facility that this company had was a single facility facility and kind of that was anna but we think that in this particular case they've taken an issue they from read the went on the internet found somebody in different locations found this other company in in belgium and they've just dragged out paying what we believe is a legitimate claim and we believe what they have done is actually frivolous in pursuing this appeal so we would ask that the court not only affirm judge our base decision because there's been no  never ever brought to judge barbour's attention these particular issue that first of all let's go back and look at the big picture here this is a two million dollar claim we have up i think material questions we have a whole line of authority that says you want to send it back and this comes up judge barbara himself has done it twice so we filed its appeal now they say that there's a waiver and with respect your honor leave it leave it that's absurd ok thank you thank you your honor i that was that was our sense as well they also say that our position is that any time new matters come up at the appeal panel station hasselbeck that is not our position at all of our position is when there is a material disputed fact and here there certainly is they say we say why and we have some some information we don't have all the information we have some it goes back judge barbie hasn't had other cases like this in judge barbie in that system situation we think consistent with the text of the settlement has said this goes back we have a whole line of appeal panel decisions which say when the situation comes up it goes back and there's a reason why it goes back and that is the appeal panel can't make credibility to terminations how can they possibly do that all they have is a record they don't have the information from they don't have all the facts so how can they possibly make a credibility determination and sometimes it won't be a material this beautiful fact sometimes it will come up where for instance in the cases they cite as a got independent they know about this and they concluded it didn't make a material difference what two points the appeal panel they know a lot about the settlement but they know nothing about taylor miller because they know what you gave him screenshots  what's the explanation for the folks who claim to be employed by pillar miller including a senior engineer in brussels they don't ever tell anything about that to the claims initiator logical to me based on the nature of the business you are selling industrial  grade equipment you're selling it overseas you need somebody to guys on the ground one doing sales and one doing troubleshooting in case they have to ask questions in french or german the way they think if that's a separate install facility which is define very specifically it's hard to hard an office building or someplace or why wouldn't they have them in the u because apparently you don't make any complaint that they are separate facilities in the u s right well you know other than the fact that there are these remote working employ that we think merits a little bit more investigation and that but but i mean it to go service in products overseas are they making revenue for that that they're reporting as part of their claim here that's obviously material information that we have no one has any idea nobody knows and i get to this day i still not heard an explanation for them what  going on over there and their appellate counsel come here's a c doesn't know so we're the same situation the problem here this is true for most process type of deals we don't know the facts because nobody has gone through the process to find the facts some some some things stick out in one's mind as being things that are quite defective that are factually defective but this that's why he's asking for common sense because this is not strike me off hand as being something overseas of a hard to sell it overseas well then what's happened well they did they did say there was no facility they said that it's not their facility owner and he says milliner international there's no question that's a hard facility if there's a employee who is servicing products overseas who's working out of that facility which i don't think is all unreasonable to to to infer that could be this get the situation but what's happening with that revenue what's happening with those expenses and how c happens because the send back would be to judge bar b a to exercise discretion or view and the exercise discretion review and comes out the same way we sure are so there's two ways that this can go where we're going to find out what's going on in resource roles can we see your expenses associated with his employees can we see your contract with they have a property that's correct there's a process in place that would go back to that if that's the case if the court says that there's a split on the board about whether there has to be a rematch and whether that would go back to