all right sir you up may it please the court i'm stanton jones and i represent the district court abused its discretion by denying review in this case for two reasons first just like this court's recent decision in the texas gulf seafood case the settlement program rooney asli misclassified certain of the claimants expenses as fixed or variable based solely on the label assigned to those expenses by the claimant rather than placing the expenses in their substantively correct categories and as texas gulf seafood held this error warrants remand to reclassify expenses and second of even greater significance both in this case and more broadly for purposes of other claims going forward the settlement program also seriously misapplied the settlement agreement by riff by failing to resolve material discrepancies between the supplies expenses reported on the claimants p n l's profit and loss statements and its tax returns those discrepanc i believe there should be no dispute as to their existence and amount it also should be undisputed that they alter the amount of the award by over one hundred thousand dollars and also that the settlement program under took no effort to resolve those discrepancies an appeal panels are split on this issue the two distinct approaches have led to inconsistent results and absent this court's review and intervention this issue will continue to there the settlement program classified certain claimant expenses as one hundred percent fixed because the claimants labelled them supplies and exhibit four d to the settlement agreement lists supplies as a fixed this court held that appeal panels were split on how to classify claimant expenses in these circumstances and that this issue is critically important to those in the court's words to the poor of the settlement agreement and has the ability to significantly alter the amount of awards this court accordingly held that the settlement program in the appeal panel had erred in this classifying the expenses it vacated and remanded with instructions to the expenses in their substantively correct categories meaning some fixed and some variable and all of the same is true here so here is we what the  but we are following the baseball rules and if in fact after looking at what would mean a proper calculation one side's final offer that's the right word for is can still closer to being the right result than the other and we're going to apply this this close enough rule one to not really doing these thousands of claims more than we need to why isn't this different for that reason that he gave a lot of reasons for the reason that the appeal panel noted the problem said we look carefully at all those people writing opinions things that maybe didn't happen i don't want to give away any secrets but i'm taking them at their word they looked at all of this and they said that the closer and threw still the one that l's and tax returns because that discrepancy was never resolved at the claims that ministry under stage the initial stage of review no one knows what the correct award is that the whole point the whole problem with the discrepancy is that the claimants p n l's for two thousand and nine and two thousand and ten lists particular state dinners for the supply expenses but when you compare that figure to th the supplies expenses reported on the claimants tax returns for two thousand and nine and two thousand and ten they don't match and our whole argument b p s entire contention throughout this proceeding including here today is that the settlement obligations in that circumstance under that clear plain text of the settlement agreement the settlement programs obligation is to resolve the discrepancy to figure out which one is right or is the correct answer somewhere in the middle so without any resolution of the discrepancy which again it should be undisputed that the discrepancy exists in the amount of that you can just look at the numbers on the page without any resolution of the discrepancy you don't know what the correct award is and so the appeal kennel rules in this circumstance absolutely allow the appeal panel to remand to the claims administrator to resolve the discrepancy in those circumstances the relevant role it's real seventeen d five of the appeal penna rules it says two things that are relevant it says first all appeal panel decisions shall be in conformity with the terms of the settlement agreement and applicable court rulings and on both of the issues that we've raised this award is not in conformity with either the terms of the settlement agreement or the out of the ball court rulings which in this case include texas gulf seafood if the rule also says that the appeal panel camera manned if quote the information in the record is not sufficient to support either side's proposal and that's true here because of the discrepancy is there any circumstance you say true here is there any circumstance where the appeal panel is required to remain and i realize you're saying that it would have been better in this case had they done so is there any requirement that the appeal panel remains so i believe that they are required to remain and in this case and in any case where there is an unexplained discrepancy between the claimants p l z and tax returns and you don't have to take my word for it in several of the appeal panel decisions that we cited in the appeal panel held that there was an unexplained discrepancy that necessitated that mandated a remained so that the claims administrator could resolve the discrepancies the appeal panel had an option to employ this baseball process that we've talked about  mand are you saying that there is that it's not optional at this point it's mandatory that they remained occur it's possible that and for other types of issues there might be discretion in  circumstance where the discrepancy it is unquestionably material goods if that's the word by over a hundred thousand dollars it is unexplained there has been no effort to figure out which is right the l or the toxic turd in that circumstance i think the only proper course of action for the appeal panel is to remand so that the claims administrator can resolve the discrepancy one way or the  think that it does seem to me that under the rules govern the appeals process i don't know what the introductory numbers are but apart five or wherever the bigger category is appeal pound decisions so select are one or the other of the final proposals may we man only could find a new document has been introduced don't have that here or the information in the record is not sufficient to support which one is closer and you see me saying the organs different on a fifty fifty division and on the second the profit and loss it doesn't mean that the these rules seem to give some judgment to the appeals panel about in fact whether there is enough here for them to determine what answer is quotient and you're saying no and that's it seems to me that's a computation matter or a factual matter that we may have to resolve but i'd do the give the rule seventeen  saying if that's the right number override this particular rules for for going the appeals now i think that whether you view it as mandatory to remand or discretionary in the case like this where there is an unexplained discrepancy that alters the award by over one hundred thousand dollars the only proper course would be to remand even if that's a discretionary decision by the appeal panel but i will tell you and let me point you to some of the appeal panel decisions that we cited and what they said before you leave that and you and you may have answered it implicitly i'm exactly how these rules work are you saying that what i am quoting is in fact is it ar case when there is a large unexplained discrepancy between the p n l's and the tax returns and i don't see how just under that rule alone how the appeal panel could properly select either side's dollar proposal when based on the discrepancy and the fact that the claims administrator never result that nobody knows what the correct award is right all b p is trying to do here is obtain a re to the claims administrator so that the claims administrator supported by a small army of accountants and program accountants can resolve the discrepancy or it this is their basic work of the accountants to resolve discrepanc between the books the p n l's and the tox returns and that sort of what's going on here is we're trying to keep from having a larger army doing this sort of thing and that's the whole reason for the baseball process news that we're not going to redo it without some quite significant problem you saying this is one of those categories well let me ask you about the difficult for the refusal to review this it does seem to me relieved raising when we agree with it or not that there are some inconsistencies in what's going on in the process that judge barbier needs to get a handle on he seems to be stepping back after many years of being heavily emerged in this and using more carefully which cases who do why is this one give us the best that there was an appeal panel split that the issue was not only important but went to the very core of the settlement agreements and the court held in texas gulf seafood that the that the district court had had abused its discretion by denying  discretionary review ok and it's the same circumstances here so all we're asking for is that this court simply follow published circuit precedent from texas gulf seafood on the discrepancy issue thing with the exact issue resolve these inconsistency is we need to apply whatever is a resolution was to your case in fact all he needs to do is send it back to the claims administrator which is exactly what has already happened in texas gulf seafood texas gulf seafood this court's published decision resolved the substantive interpretive issues that this court held that the correct interpretation of the settlement agreement is to place expenses in there substantively correct categories so that's already a result all that needs to in the in the counting ration but it's only an error to become clear retroactively it's a respect lee if if this case had come up to this court before texas gulf seafood we would be asking this court to hold in the first instance that in failing to resolve the discrepancy there is an appeal panel split on that issue too and we cited all of the cases in our briefs many appeal panel decisions have held in circumstances that are materially id and tickle to be with an unexplained discrepancy hated that it is necessary that the claim must be remanded those are all words from appeal panel decisions that we cited to resolve the discrepancy other appeal panels like this one have held that there is no such rule and they essentially just throw up their hands and use the revenue mix and expense figures from the claimants p and l even though those figures don't match up with the comparable numbers in the to get a ruling which they received into texas gulf shrimp and this case is one of cases probably many of them that were sucked up into this desire to have administrative panel reviews the appeal  reviews kicked back to the claims administrator for various reasons is this case different from the texas gulf seafood cares absolutely not only isn't different it's different for two two very important reasons they're walking about the record and i'm going to show you record citations where the claims administrator did the distinctions did the category claims analysis b p is asking for and i'm going to tell you  get a large chunk of their hundred thousand dollar claim in particular they banded thirty six thousand dollars of their one hundred thousand dollars it's that when you get into that too much are you arguing that there was such a discrepancy as has been highlighted by b p but that it doesn't matter because of the process employed which was a blast by the agreement and the appeals panel and judge bar b a a and now you want us to do that or do you upon which the the the argument could be based that the appeals panel was an error correct ok part number to do i'm going to say the appeal panels he hands are tied in this case because b p have been at thirty six the administrative number of the claims of missionary numbers or b p s number or the claimants number that's texas gulf that's a huge distinction from this case i'm really here today arguing on behalf of the accountants my clients did not submit a number my clients did not argue with the claims of their i gave you an exhibit which is nine hundred from the record that is the claims administrator accounts and no counts that b p is in lubbock that b p argues on every argue we should just do what the accounts say they have a team of a hundred pounds and we should follow the counts that's what this case is my client accepted the that there was a misclassification of a license permits and benefits for a total of about thirty six thousand dollars and then the maintenance of vs maintenance cost versus repair costs are going for about four thousand dollars what you can only choose between the administrators number and the b p a regional number of hundred grand once they gave up that thirty six thousand dollars it's now mathematically impossible to ever get back to b p is dumping the tide and that's important and i want to point that out and now to go to the record site to why they're just plain wrong you don't read the record i don't know but i'll give you record citations so with regard to the first argument regarding forty three to six fifty three and the record on appeal shows the p and l statements show that under the category or title maintenance and repairs my clients only had repair costs that's why a hundred percent of that number goes to repair and the record shows that record citation seven forty one and nineteen twenty two there were no underneath equipment repairs repairs excluding maintains my client only had three on all the piano statements for two years only three repair lines building repairs equipment repairs and now i stopped on pest control for a second the the accountants found past control was not a repair and took it out and in that same general ledger m f b e l methodology nine twenty one one twenty two excluded pest control as a repair and next to it they wrote contract service that is exactly the analysis b p s asking the accountants to do they did it it's in the record and if you look not at the titles of the categories but the actual words themselves which is the holding from texas gulf building repairs was found to be repairs excluding maintenance equipment  repairs excluding maintenance a pest control was taken out as a contract service my client is entitled to one hundred percent of that four thousand three hundred twenty dollars zero seven according to the claims of minist client my client would have liked to have kept pest control as a repair we believe it was a repair because it's not on a contract service you're only calling them in when times are bad in particular and this is actually important  you have any questions about maintenance costs versus repair costs i think i thoroughly showed the record supports a finding of all one hundred percent of that with her to my client next this argument about supply categories this court has to rely on the army of the pounds and there their knowledge and expertise on how to classify supplies that's this case so what happened was there is a line item in here settlement and the following steps were direct quick book exports into excel one of these set separated the monthly transactions by location and the second utilized was the consolidated appeal for the two claiming location then they go on an item nine talking about piano variances those are piano variances from the tax returns and they talk about a blow under ten seasonality in other income they did a full there was no problem with it none in fact i have a citation for you a new one a different one in the record of appeal eight ninety eight ninety six there was a detail email communication between the accountant and my client in that email conversation is a request to my client and guess what it says a read it's number to request the second request of my client and it states as follows after further analysis the net income closely reconciles between the books and the tax return however it is unclear how the pay will payroll taxes and employee benefit accounts on the p and l consolidate and to reach the amounts reported on the corresponding tax return please provide a book to tax reconciliation that illustrates how the piano and payroll slash employee benefit accounts are recorded on the tax return what's that tell you they absolutely did reconcile everything he said his wall there is no they absolutely reconcile everything every discrepancy was reconciled there are no discrepancies and this sheet is important because it silently as to the supply discrepancies because there wasn't any  i'm both grounds my clients when here today there is no problem as to any of the facts will reconciliations there is no problem and we're absolutely in harmony with the texas gold holding states this court holds that the settlement agreement requires claiming ministers to use their independent judgment and classify expenses as fixed or variable according to their substantive nature rather than rational basis review of the claimants own don't think they would have liked the rule their lucky texas cult came before our case because i'm literally here arguing on behalf of those accounts they're not here i'm here the claimants here and we're arguing to uphold their calculations and we're saying under section six point two of the settlement agreement and the exhibits attached to it the claims administrators did their job that means i'm arguing for enforcement of that settlement agreement and under seventeen d five the appeal panel did not have you cited the judge who cited the exceptions to when the appeal panel should take it up as when there's new documents or information or when there's insufficient information number in this case as you pointed out b p s number was so far and the plane about thirty six thousand dollars anyway you have to choose the claimant's number which is really the administrative townsman if you wan piano the fix versus variable argument to show you how the claims of mr actually went and negotiated with my client was doing what's fixed or variable and b p is now coming after the fact and i think what what what should be and that's significant because the record does support the claims administrator accounts of rulings in this case so this is not such a case where you'd have to decide whether the appeal panels should have sent it back because it was nothing he sa do you have anything else sue there was a lot there let me let me try to keep the two issues separate because i worried that in some of that discussion the two issues were sort of muddied together so on the first issue this is the expense  misclassification issues certain expenses labeled repairers were classified as one hundred percent variable when the should have been allocated fifty percent variable and fifty percent fixed under exhibit four d to the settlement that is the issue that is controlled by this court's recent published decision in texas gulf seafood ok the claimants argument today that those expense accounts are actually only written included repairers that is both a huge surprise to me because i don't believe they've ever argued that before it certainly doesn't say that in their brief in this court it's also wrong the appeal panel itself though not ruling for us did acknowledge that  point about this and that's straightforward because the claimants own claim acknowledge that these accounts that we're talking about include an undifferentiated mix of both repairs and maintenance that's on page six forty five of the record on appeal their tax returns say the scene being undifferentiated mix of repairs and maintenance expenses that's on pages six eighty and six eighty nine of the record on appeal and their appeal brief to this court as i read it it says we are all in agreement that this isn't on these accounts or an undifferentiated mix of repairs and maintenance and therefore the fifty fifty rule fifty percent fifty percent should have been applied  so again any argument today that these expenses are only repairs i think is both out of place it's a surprise at this point and also it's just not correct on the second issue which is a completely brit discrete and very important issues for b p and the proper implementation of this settlement agreement this is the issue that there is a discrepancy between the supplies expenses that are reported on the claimants profit and loss statements on one hand and it's tax returns on the other hand this is not an issue about classifying the expenses as fixed or variable necessarily that was the first issue that related to the repair and maintenance expenses this is just a straight up discrepancy there you have the tax returns and you have the p n l's and both of them with supplies and the numbers don't match and so it says very clearly and in the settlement agreement and in claims administrators policy to seventy four which i'll read it says the settlement program will perform a reconciliation of revenue and total expenses in the claimants l's and tax returns where such reconciliation reveals a material into scrap and see between the claimants p l c and tax return the claims administrator we'll see to resolve the discrepancy we'll seek to resolve the discrepancy and of course that makes good sense the whole point of this settlement agreement is to calculate awards that are accurate right that compensate claimants the real losses in line with the settlement agreement and if there is a disc and a settlement agreement requires claimants to submit not only their pianos but also their tax returns and the purpose of that is said that the taj returns can be used by the accountants to ensure the accuracy of the revenue and expense figures reported in the p n l's that is all point of requiring claim is to provide them the settlement agreement requires that when a discrepancy in the tiriel discrepancy is identified again the claims administrator and we'll seek to resolve the discrepancy that's policy two seventy four exhibit a to the settlement agreement authorizes the claims administrator to request any additional information or documentation from the claimant it is necessary to the rich to resolve the discrepancy and that was not on one dollar the argument coming cutting you off that look like your own thing on the menu of thirty seconds working or not they have limited resources as well you're saying that this needs to go back because of the dollar sign of the potential air or the dollars size of the clearly probably allow that yes ok two reasons first the settlement programs failure to resolve this material discrepancy between the claimants the supplies expenses reported on the claimants pianos and tighter turns is a serious misapplication of the settlements everything about this claims the failure to resolve this claimants discrepancy yes that is the first reason the second reason which is really even more important is that this is a recurring issue it has recurred in many claims before it has led to a split a division of authority among appeals panels where some appeals panels hold that in cases like this one the appeal panel allows the use of the p n l's to calculate the award without any effort to resolve the discrepancy and that issue continues recur not only in this case but in a number of other appeals that are at beriah stages either before the settlement program appeals panel or a pending before judge barbie and some of them involved numbers dollar figures  substantially higher than the ones here i don't think anyone should scoff at a hundred and seven thousand dollars which is the amount at stake here but this issue is worth potentially millions of dollars in multiple other appeals  me i think the problem is that there they apparently are not clear enough to the whole of the appeal panels it's similar to the context of a of a circuit split that might warrant us supreme court review certainly the petitioner is arguing that it's absolutely correct but there's a circuit split and it needs resolution i think that this is a comparable situation and it's the function of judge r b s discretionary review and this court for you to revote to resolve appeal panel splits particularly on issues that frequently recur and all of that is true here this is a recurring issue and it's worth potentially millions of dollars in multiple appeals on and and it goes to the fundamental