more of one year honors may please the court the name is john turner i represent the claimant appellant in this matter the claimant owns a shopping center in mandeville louisiana and they follow a business economic loss claim with the deepwater horizon so in the program the claimants claim was denied because the settlement program decided to reallocate the revenue according to the scam last year count over the previous year in violation of the amended selman agreement and this court's re opinion can i ask here is your case kind of in a weird place because if it had been still pending before the district court it would have gotten remanded back yet is that right that is because it was with us so do you want us to rule or do you want us to send it back to the district court to be remanded back to the big bow on it with all the other cases that are being remanded back or likely to be remanded  without deciding the action whether or not there is abuse of discretion and whether what how to allocate these fees i mean whether or not you can do that you wanted to be grouped with the other ones i've been asked opposing counsel that do ok best administrative decision that we could make to have this one straggler kind of case they got appear before the rest of them did yeah i think we were just among fortune in our timing that we were fortunate that we weren't too late you know compensation or determine causation and of the settlement agreement at the beginning of the year the claimant it's would estimate would have thought that the cam expenses would be for the year and then it would charge its tenants that amount over the twelve month period then at the end of the year they would do a true up as to  you know what the difference was between the amount that they actually spent and in the mouth that they collected from the the tenets or what or what it decided to handle that all of their items i think they may have been on the modified cash basis which uses cash basis for income purposes in a crude basis for more long term purposes li property plant equipment and things like that so i don't think that anything was inconsistent they consistently calculated camm and came last year this way so under the policy for ninety five you're allowed to choose whatever accounting method you want to use you know could be the crew basis counting it could be cash could be modified and just so long they consistently apply that and they consistently applied this method throughout their existence so there was no error in the way that they calculated or that they counted for the cam last year account because they would build their client set in the year based on the shortfall and then they would collect it from their clients or claim sorry there are tenants there in the year and as they were collected they were recorded in this last year account so under the cash basis whenever whenever they received it they recorded it now it would be an it wasn't received in the prior year it was received this year in the current year so that in your perspective there was no error in using this cash method that allowed for the reallocation that's correct there was no  and also in light of the discourse for ninety five opinion there is no authority to reallocate revenue because there was a mismatch of revenue in viral expenses and as i said before the cam expenses are all fixed expenses so what the settlement program was actually doing there was still going beyond their authority even while out the four ninety five opinion they were matching revenue with fixed expenses they weren't matching revenue with viral expenses so that was my whole argument even before the four ninety five opinion came out it did your client click revenue though to cover expenses on a monthly grade a basis over the year i'm sorry but if they collect the revenue on the monthly pro grade of this basis yes it is as what they what they estimated they collected revenue and then they record says this with this if we were to determine this your case one way or the other does that affect other cases the start your case if we allowed then you'd be reversing the four ninety five opinion and then this the district court's order church which remanded all the cases back to the selma program to be impact more than just your individual calculations yes it would and also there was a there was another of there's a split in the people panel decisions as well  i believe it was the record on appeal that three eighty two there was appeal panel decision two thousand and fifteen nine forty which held that you could not reallocate can over the previous years and in my case they held that you can reallocate the can to the previous years and b p was on the other side so it was kind of odd to me that the settlement program would allow reallocation of cam and one case and then the people panel upheld that reallocation the cam and then when it came our case they that's that's what the court in this court held is that you know even though it may be a fair method to reallocate the revenue it violates the seller settlement agreement which says unless there's an error it's not  that's correct no the b p still has has a position in their brief that even despite that this course for ninety five opinion that they still can reallocate revenue based on the a v m methodology even though the district court held that there was going to remain and the cases back to the settlement program and that reallocation of revenue was not allowed so i'm not sure how they feel that is appropriate i think only in the i guess they're saying that the only that opinion only applied to the four i assume means and that's if you use the a v m that before you get to the a v m you can still reallocate revenue if there's a mismatch of revenue and bearable expenses but in my case there's no variable expenses except for one entry in october of two thousand and seven which which has nothing to do with the cam account so you've got a seventy more questions o misapplied the selman agreement so therefore the court did abused its discretion and also there is a split in the appeal panel decisions which i which i discussed that you know they allowed cam in to be reallocated in my case in the other case they didn't allow the can be reallocated so i think on both points in the holmes motors it case that that it meets those tests and that it should be r even if that we don't have to reach that issue if we just remained it to be treated like the rest of them they'd say that this one got caught up in the timing issue they are we could just remained it for that reason we don't have to even get into leather the reallocation is allowed by the settlement if we don't get into any of those issues or even whether the district court abused its discretion and not during the case because because we're not dealing with it to try to change it if in light of the four non involved opinion that that's that's the reason to just remand it to let the district court look at it again because the district court has already answered this question in your favor by remaining all of these that have reallocation in  decided under the a v and not at all and so the decision has no impact on what it is that the c s s p was applying was applying a v m which this court upheld in its entirety judge barbier in deciding whether to grant discretionary review or not that he denied it was looking at and so there would be no reason to send this back to have a v m a real plot is it not true that the district ordered that cases pending before the claims methodology and therefore didn't need to go back the other side agreed the judge jorge let stand what had happened in the program before the policy for ninety five decision but one that used language precludes the application right and we think you need to look at that language and decide whether that squares in the context of this appeal with the policy for ninety five decision because if you look at the policy for ninety five decision it doesn't say that the a v m methodology is up rule on the merits on this yes your honor i i think that where our position is correct right obviously if i if i knew where the court was going to vote on the larger question then i could give you an answer that went one way or another way but standing here not knowing what the answer to that is behind the veil of ignorance my answer would be that we're you know are are we are are reading of the fifth circuit decision from a of twenty seventeen is correct that judge barbie in saying that revenue we would be i guess abusing our discretion or not doing our duty we will be man without addressing the merits no your honor and i would say that for this reason so b p has brought a general challenge to judge by the his reading of the policy for ninety five decision that is pending it's currently stayed but it's pending so there would be another vehicle for you to reach that issue so if you decided that you prefer to reach it as a vehicle you know in that in that other appeal that general peel and not in this particular case that we don't think you know in the exercise of your appellate discretion that that would be any kind of abuse that we could just send it back and say this is kind of caught up in the timing do that your honor let me try to make the case to you why on that how would we do it was ok so what you what you would say if you kept the case right would be we don't need to reach the issue that's pending in the other appeal about whether the judge barbie read the assuming an argument or we're not going to agree with you that there's an error so what how can we what would we say to send it back without ruling on the merits i think you would say that in the policy for ninety five remained orders the judge barbie and turner he would have if he had this case pending in front of them and if he thought that you know those orders were not mooted essentially by the other features of that case that he would have sent it back ergo we're going to send it back to judge barbier with directions to remand it to the c s s be that you're telling me this is still going to be an issue that you are still going to press and so we will decided here today and and yes right that's correct so and we would say that there are some reasons to address it here as opposed to in the general challenge because the general challenge is not one that comes up on the back of particular facts so in this case you have a particular set of facts you can see why it is that the issue of the c s s p deciding we think properly to move revenues was correct and so you have the advantage of a particular factual record to judge that question against here as opposed to in the general vehicle so let me let me go on to the other questions that were raised here so i heard so this goes to the issue of error your honor so forgive me i'd like to try to make the case in any event that there was an  gaijin here so if you look at page five of our opponent's brief you'll see they say that we own it operate a shopping center consisting of multiple businesses etc van de ville louisiana which it maintains ninety five at page three and one and what it states is that recognizing the settlement agreement does not mandate that the p and l be based on gap or any particular basis of accounting the c s s people analyze the pianos under the approval cash modified cash income tax etc you know in the normal course of the business reflected in the in the piano up above in the prior paragraph it says that an error is defined to include mistakes in applying applicable accounting principles based on the claimants method of accounting so if you have adopted in a cruel method of accounting you cannot just decide for one element of revenue namely in this instance summer they did it so we're not arguing your honor that they decided to switch it up just to gain this one particular application i grant you that but that doesn't mean that it's a valid method of  for compensation based on their own accounting method to they consistently and their businesses and be paid and tried to change that ever since the first case court to vary these accounting methods so rather well with all due respect i don't think the accounting method is being very good that's why i have a size to you the concession which is early on in their briefs and page five that they used a cruel accounting whatever they call it a rose is a rose by any name it is the method in which you say that they have used in their normal course of business and it's reflected in the contemporary p n l's and that it says to be in the specifically says a follow up on judge genesis question that the settlement agreement does not mandate that p n ells be placed on any particular basis of accounting and that the accountants will analyze the paean else under the basis of accounting used by the claimant in the normal course of business and reflected in the content this is the normal course of business you've admitted and it is reflected in their contemporary paean else so why it whether they call it a cruel and you think it should be called some kind of deviated cash basis for one type of thing you know you name it something different it doesn't matter what it's called so your honor the first thing out point out is that this is you know i'm not an accountant right i'm not an expert in that area but the expert accounting vendors that the c s s people changed under the supervision they came to the conclusion that this was not correct right they came to the conclusion that  five in the definition of error that it says it includes things that have been inappropriate we recorded in the claim it's contemporaneous p l z because they are mistakes in applying the applicable accounting principles based on the claimant's method of account so their method any customer are expense that they have yes to run or if they select a particular method of accounting they have to use it consistently indeed for i r s purposes if you're going to change your your accounting you need to or notify the  because they say another business did it before you know whenever this issue would come up in the lion share of cases the c s s p ruled that that was inconsistent with the accounting method that those businesses have used what they really come up with there was an inconsistency between the method that they use and the method that they actually applied in this particular instance of the camera help you want what is the difference in the case but he did do that he did do the order these do go back so so your honor as i said we think we have you know substantial arguments that that that that the judge market was misreading the policy for ninety five decision but if you want to send it back because other cases of you know that were decided in your a b m s really were also sent back as well then you know we won't fight that ok or do you continue to maintain that you win even if there's no  you your honors the settlement program the appeal panel never said that there was an error in the way that they were accounting what they what they did is they saw that the sum the program saw this cam last year account and then they focused on this and they said yeah this would be a great  account to reallocate over the previous years so what they were doing rather than correcting an error is they were matching it they took revenues that were related to previous year ca allows reallocation of revenue that would make no sense because the court said that all of the all of the claims including the four i for i assume would reprocessing so if say a former comes in and his claim is being processed and then that sell the program says well you know what under our discretion under four ninety five under the a b m we can reallocate revenue so that would just invalidate the four ninety five opinion that relates to the highest sims so they could still use a industries that they can do it that's their position but but they said that if it that it would be remanded and then processed under the a t m method so and then you're saying if they don't know so i mean what why would you pick out these individual industries which or more prone to recognizing revenue not i guess not recognizing revenue when the expenses are and i mean you know attorneys with the contingency fee case you know that they would go back over and recognize the expenses over the life of the case they would you know they