categories of awards and therefore renders those awards immediately payable under this court's decision in deepwater horizon one that fact is sufficient to confer appellate jurisdiction under the collateral order doctrine because the well your honor it conclusively resolves from the district court's perspective their rights and liabilities with respect to these issues it's the last thing that happens before the money goes out the door and it's the last action of the turn to the merits of the may twenty order should be vacated because it improperly interferes with these appellate rights and violates federal rule of civil procedure seventy nine by preventing the docketing of orders denying judicial review and by preventing the creation of  appellate record on the docket which is the ordinary course of the way things are handled in district court proceedings pelleas principal response to this problem is to argue that b p waived its right to appeal from individual orders denying judicial review because the settlement agreement doesn't express clee reference b p is right if you however that argument is merit is first of all this court in deepwater horizon one already held that the parties clearly intended to retain their right to appeal to this court that's in footnote three of that decision that holding is consistent with the decisions of the tenth circuit in the month has case the eleventh circuit in the waters case and the second circuit in the another just like the consent to create issue here and in each of those cases the court applied the rule but the background presumption the default rule is if you disregard does something that meets the requirements of the jurisdictional statutes and the settlement agreement doesn't waive their right to appeal then the right doctrine for the same reason that this order does they namely they resolve the parties rights and liabilities with respect to the particular amounts at issue in those awards and they lead to problems payments that he would have difficulty looking at the end of the case  the law is clear that district courts may not interfere with parties appellate rights by blocking the creation of appropriate appellate records or by refusing to docket papers and orders on the district court docket  the seventh circuit said in the clarke case cited in our brief any attempt by a court at preventing an appeal is unwarranted and cannot be tolerated so for those reasons alone we submit to the may twenty fourth or should be feted in addition t may twentieth order violates rule seventy nine which provides a district court clerks must enter orders judgments and as and on the civil docket and also must enter on the civil docket papers filed by the parties the court the district court here court refused to allow b p to follow the normal procedures under rule fifty one not skip excuse me it was seventeen and not only is that inconsistent with roe seventy nine it's also inconsistent with the public's right of access to the courts under the first amendment and the common law because the public has a right to know what's being filed in district courts and what district courts are doing and and here we have essentially a shadow docket that isn't on the public record and that violates rule seventy nine as well as the first amendment right of access to courts those errors require greater of the order and finally the order should also be vacated because it in permissibly blocks he's rights to seek judicial review from seeking judicial review of particular categories of awards that has becoming increasingly important recently because just last month the district court held a hearing on b p s request to recover over payment undisputed over payments to certain claimants that received payments based on the district court's erroneous matching ruling which this court subsequently reversed in the deepwater horizon one appeal and so in response  twenty fourth class council took the position among other things that want to reason why b p should not be allowed to recover that overpaid money even though it was undisputed the overpaid and should never have got out the door they took the position that one of the reasons why classic why b p should not be able to recover that review which of course are prerequisite the filing of this of appeal so for that reason as well it's important that final rules sixteen and nineteen if this court were to rule that that there is a a right to appeal to this court do you have any indication how much additional litigation to this court might it might cause just f obvious reasons i might understand your honor you know the class council has argued that there be hundreds of thousands of appeals and that's just not plausible that the settlement agreement sets up multiple tiers of hurdles that narrow down to the disputes that could even potentially be available for a to this court many awards are knocked out on documentation grounds which can't even be appealed within the settlement program then only certain awards once they get passed that only certain words can be appealed within the settlement of program there are limitations on what claimants can appeal their limitations on what p p can appeal so as a practical matter thus far only about thirteen percent of the claims that had determinations were even potentially appealable within the settlement program now this is before we even get to district court and of those only about a fifth of actually going to appeal within the settlement program and you have to go through the settlement program appeals process and get past the hurdles to that and you also have to pay fees in order to participate in the settlement program appeals process and by the time you know that down with their what they've only got about five thousand appeals to the settlement program process and then you still can't appeal to this court because you first have to file a request for judicial review which only about it has only happened over four hundred times in the time since the settlement program has been operating  the only appeals that would come up would be appeals like these three that involve questions of law words of abuse of discretion for the district court not to adopt the correct interpretation of the agreement that there is so they would affect categories of cases and that only in those decide a nation to take up an issue and discretion in the actual decision process of an issue if if if if if if those can be described as two different wouldn't why wouldn't there be a difference between the way you would assuming that we have a right to appeal which is first you have a right to appeal that that you wouldn't necessarily have the same standard of proof with regard to the discretion in deciding an issue to  question of discretion even deciding whether you're going to decide an issue in other words for those two different questions i know that if you look at an issue and you have the right the discretion to decide how you're going to decide it that if you make an error a law that by and by definition you have an abuse of discretion in that in that area how do you is there something different in the initial thing when you have a discretion to do to even decide whether you're going to decide an issue and in the agreement that we have here which kind of discretionary power does the district judge let me answer so first of all i would say we don't the question of whether it was wrong for the court of appeals not to exercise that discretion and i think that makes sense in that context and similarly here where where the two steps collapse into one the reason why it was an error for the district court not to grant review is the same so we know what the problem is and that the same problem that it infects the initial exercise the initial decision not to grant review and makes the merits of the ruling incorrect so if there were you could imagine a circumstance france for instance in declaratory judgment act context that's another example where courts have discretion to decide whether to hear a case under the declaratory judgment act and appellate review is available director of you that discretion but in that circumstance that a decision whether to hear the case is separate and apart from the merits and so the court's review of the discretionary decision whether whether to hear the case of fine constraints on district court discretion but that doesn't necessarily resolve the merits here the problem with each district court's exercise of discretion the  are out of their way the release that works actually that the releases are distributed with the initial award by the settlement program so so in many circumstances and indeed in two of the three nonprofit cases at issue here the claimant signs that release his rights in exchange for whatever payment is ultimately determined by the entire process it's due even though that amount could change from the time they signed a release until the end of the process the settlement class i'd like to begin with whether there is an appealable order at all here the claim by mr hungary's that he may twentieth order somehow prevent speed p from exercising it rights in this court somehow prevents that docketing of cases of decisions by the district court there is nothing in the order that does that what the order does is it sets out the internal it feels processes of the settlement morning and it has no bearing whatsoever on their right of appeals into the courts of appeals at all the three cases that they cite in the brief of the proposition this terminates their rights are all cases before the two poker future for and wall fifty eight if there is no separate document issued by the district court the parties have one hundred fifty days plus thirty days a total of one hundred eighty days to perfect their appeal there is nothing here this is simply the internal workings of the settlement their brief has this elliptical language about it this may cause their rights to be waived there's not an active verb about what this up with this order actually does that they have identified now the reason that this is significant there are two reasons for this the first has to do with the collateral order dr and the second has to do with the way that this court has handled complex cases with with difficult settlement implementation practices in the past and the second point is macmahon point but like to begin with the collateral order rule if we take the  footnote three of deepwater horizon one as the template and that's the only thing that cited by b p and its briefs it is noteworthy first of all that this is a section of the opinion only endorsed by one judge it comes prior to section one so the judge southwick did not join that part of it but assuming that that's the template what we see in the appeal in b p one in the deepwater horizon one in the b l case is that at issue was a structural merits interpretation of how payments are being are going to be made the appeal was taken from a march quarter of a judge of the of the court below and in that decision what judge barbie did was he said the v shaped curve that is used for contests for calculating the settlement damages will be interpreted in this fashion it was a policy statement that would govern the payment of a whole category of cases and the court took it up under the collateral order doctrine now if we look at the criteria set out in henry versus like charles by this court which is i think the most recent case that carefully elaborates the requirements for collateral order doctorate there are four requirements that must be conclusive it must be not separable it must be under review and most centrally it must be important and when this court discusses what it means to be important it talks about the vindication of fundamental public policies it talks about a defamation action it talks about something like impeding the ability of the president to discharge functions something like a violation of the sovereign integrity of the states this is an internal procedural rule with regard to the administration of the internal appeals process there is no decision of this court that i can find on the collateral order doctrine that addresses something that i don't mean to belittle it because it's an important settlement but something so trivial by comparison to the kinds of issues that have been that the collateral or order doctrine has been used to address and even the b t l one decision the first decision in that in the b p litigation that was a decision that was the overall policy and that at the time we took the position before this court that those policies if anything is appealable during the administration the settlement it should be the major policy questions and not the internal administration or application now it turns out that this court and seven different judges of this court have addressed in unpublished opinions granted their own published with seven different cases judges have had to address some application of this in the most difficult prior mass settlement that this court has reached which was the invariably soil litigation and in in rightly so oil there was an attempt by a claimant in the settlement  to appeal directly to this court and to say i was denied my benefits i'm done i have nothing more to litigate i want my benefits as promised by the settlement settle the claims administrator decided the district court had affirmed that this was not something that this particular claim it was not entitled to the benefits what happened in that case is it goes up to this court and judge smith writing for three judge panel or unanimous three judge panel says we don't deal with these kinds of interlocutory administrations of a settlement that's purely the function of the district court this case lisa oil then goes through many different other district court decisions and it comes back up to this court when it's final and when all the administration has been done at that point this court says we will now look at the final and they take the small piece that was mcmahon case and then they say now that's right to be taken up because we're taking up the entire package and that's that's the bread and butter of appellate courts that you should not hear piecemeal that occasion that you shouldn't hear every actually different parties where you know when when we got to america i think that there are two different times in two different ways one is if there is an issue of significant policy determination that ranges across a the clabber order doctrine because it meets the fourth criterion of importance if not eat b p is perfectly capable of preserving its appellate rights of docket in the case of notice in the appeal and the case would not be right until everything is concluded that's what must by read everything is concluded what do you mean by that every single client or mine will claim related to that particular order in that particular interpretation well we have two cases that that give us instruction on that from this court one is the mcmahon case which says until everything is resolved in the administration of the claims which is in fact how this court handled the in really soil controversy and the other one is the radcliffe case which was an ongoing supervision of a dispute over royalties and with this court said in iraq with again it s s s a c versus radcliffe again unpublished but it's the same basic principle it said even though you are required to pay the eight percent royalties during the interim even though you have an interim award of attorney's fees that's not final until that's not appealable until the very end of the case and then you can type things that we can hear and if not more what is different in those cases i will argue in the in the second part i will argue that the under the particular facts of the case they are not reviewable and certainly the question of the actual interpretation for example whether in kind legal services to apple see why when you're getting a part from a marriage right so  why wouldn't it be review is what what happens in those cases is that in november you have a determine of ember of two thousand and twelve you have a determination by the claims administrator here is the policy on non profits on december twelfth two thousand and twelve you have the district court saying i adopt that policy and so if there is going to be an appealable order it's from that it's feeder from twelve twelve or twelve  twelve when the district court approved the settlement over all and all of these policies were carried into the settlement or at the very latest on march twentieth when b p docketed the policy determination that's what drives that those cases if there is an appeal if there is an appeal it has to be it has to meet the forepart test from the henry versus like charles case and it must be important and it must be something that is not reviewable in the ordinary course of getting waiting till the case is fine some day all of these claims will be resolved it will happen hopefully sooner rather than later and then they will be reviewable if they intervening steps that met meet the criteria of the collateral order doctrine then the court should be able to take them up on the policy terminations or you would find that this case is different from the previous cases i mean in previous cases panels of this court granted appeal on a deadlock tory appeal yes you are you are you saying that the issues in this specific case do not warrant going to rock her appeal and they did in the other previous deepwater case i am saying that this one does not your honor i am saying that the ruling of the court in the last one was the granting of interlocutory appeal under the collateral order doctrine from an order which looks nothing like the may twentieth order it's a substantive order that says this is how there will be the calculation of revenue losses in this it's in the courts in the psyche of the that you're your revenues drop and then they pick back up  again how you do the matching and how you do these just minutes and what kind of accounting standards this was across the board this was for thousands and thousands and thousands of applications and the court said that meets the collateral order doctrine and i think that if we not specified it's in a footnote footnote three and there's no argument there's no reasoning given there which is fine it's just an order but if you apply the court's decisions in cases like henry versus like charles what you see is that the court must have made the determination that this was truly important and that this was not reviewable officially effectively on a one by one basis and so it took it up it remained to the district court with instructions to adjust the calculation for for all the awards and and that's fine that's an application of the collateral order doctrine there are disputes about whether the parties anticipated and soul if it's not important reason is that which is well it's it's it's not important is number one it's an internal administrative practice number two it is simply pursuant to the rights and obligations of the district court under the settlement agreement doesn't go beyond the settlement agreement in any way which means the settlement agreement became final in december of two thousand and twelve and b p never took an appeal from that at the time would not be proper as a collateral order your honor i think that this is purely internal administration the settlement itself provides the district court shall have the rule that child of implement if there is to be challenge it first of all has to be shown why this isn't directly pursuant to the settlement agreement itself and there's nothing here second it has to be shown what the adverse effect is on b p because after the two thousand and two amendments to rule fifty eight they are free to take an appeal within within one hundred eighty days even if it's not docketed or they are free to document themselves as they did in the in the three cases  here rule seventy nine has never been the subject of an appellate reversal of a district court that we could find it's not it's directed purely to the ministerial functions of the clerk now there are old cases in the american precision case out of this court that says if you don't get the clerk filing and it's by judge wisdom if you don't get the court filing then there is no apology or restriction at all that's what the two thousand  amendments did away with that's no longer a requirement so it's not even clear how they are adversely affected by this there's not even the practical claim of where has this had any impact whatsoever on o i don't believe it is i think that they could they could notice their intent to appeal to the claims administrator to stop the process with regard to any particular claimant and then they could perfect their time of appeal either by docketing it again they have the option they have docketed countless numbers of things themselves in this case or within one hundred eighty days they can file a notice of appeal without that's the effect of the two thousand two amendments and that's what the two thousand if one looks at the advisory committee notes to both federal the pope's age of four and federal so procedure fifty eight one signs is that there is  perfectly what they want to do away with is the gamesmanship of not knowing when the appeals will run and they were afraid that because something wasn't docketed appeals wouldn't begin to run they couldn't run and so in effect litigants could walk around with appellate rights in their in their pocket and that was in improper that's what the appeals that's what the advisory committee notes said so now you can go up and there's there's it's it's it's really quite hard to fathom from their brief what exactly is the harm here what exactly is it issue here and the reason that that significant is number one as judge you were asking me is that they haven't pointed to anything in the may twenty eighth order that is not the direct descendant of the settlement agreement itself it's just the implementation of the internal operating procedures and number two because that's what it is it only operational part that really goes to the the appeals process says denial of request if the court and its discretion elects not to conduct a review the court shall notify the appeals coordinator upon such notice from the court the appeals court or shock of north of the parties that's an implementation question there's no interpretation this is just the operational rules of how you run a complicated claims process because otherwise then everything becomes a matter of interpretation because you have to look at the language and draw some conclusion from it but this is really this is just administration this is what happens in every complicated case there were dozens of in that case the court had to look at the ongoing implementation and interpretation of how the world teams were calculated and there was an attempt to take an appeal because there was an actual border that said pay this much in one of these pay this much  attorney's fees and and this court said that's not final enough because that's just the implementation that's all i have your  are several quick points first of all counsel relies exclusively on the collateral or doctrine of course as an independent basis for appellate review under twelve money to a three which he didn't address but even with respect to the collateral order doctrine i have a be to remedy its rights at the end of the case because as this court said at that point the improper awards will have been distributed to potentially thousands of claimants and the people have no practical way of recovering these funds so they addressed all the elements of the collateral  doctrine held that they were satisfied and precisely the same reasoning is applicable here is that the issues are different from deep water one and this one that somehow or other this court would not have they're t case lists the ordinary three criteria of that referencing importance and in any event walker itself and deepwater horizon both involve questions of interpretation of settlement agreements with the court which the court addressed under the collateral order doctor so those cases clearly stand for the apply there so they have really nothing to do with this case they're merely construing the final judgment rule not addressing the exceptions to the rule or the other statutory grounds for colored jurisdiction here count so says that the may twent order didn't impose any harm on b p relying on the two thousand two amendments to the federal rules of appellate procedure but counsel simply misreads those rules nowhere in the federal rules of appellate procedure does it say that you can file an appeal without anything on the separate written judgment applies under rule fifty eight or normal you need two things on the docket before you can appeal in that circumstance we have only one entry but not the second entry if you weigh two hundred fifty days then you can appeal there's no rule that says you don't have to have anything on the docket all before you can appeal and yet the effect of the district court's orders here is to prevent us from getting anything on the docket and as if there were any doubt about that from the face of the rules at communicating with the settlement program which is who the judges rules require these things to go through review that had any documents attached so we could make a record and nothing was going to be placed on the docket we follow that motion therefore having been told that there were fifty nine emotions saying judge please allow us to put these things on the docket please order the your orders to be placed on