there please court my name is kenneth green i represent the opponent neighbors offshore corporation neighbors appeals the lower court's decisions in this case that only approximately eight hundred ninety seven dollars in of neighbors approximately six point nine million dollar allowed liquidated claim was entitled to administrative priority there is no dispute with respect to the allowed amount of neighbors claim six point nine million dollars there is also no dispute because the parties stipulated at trial that all of the services that were reflected in the i d c form daily drilling reports or actually performed by neighbors in this case or whistler and the reports themselves are reviewed and song each day by  representative would be very easy if after they reject the contract you'd said we need some agreement as to why we're staying on this platform so their response as i read it maybe i'm by whistler as a demand that neighbors and their crew but if you look closely what it actually is is a request for a demobilization plan and it's significant that that is different in fact than a demand significant for two primary reasons one there's no dispute that whistler needed neighbors cranes and crane operator intil it could secure a replacement neighbors who are whistler was also using neighbors living quarters neighbors was providing the electricity to power those living quarters of interrupt you and say why why would we reverse if it's your burden to prove entitlement to the priority judge brown has a four day hearing and then he does reimburse you for the cranes and the quarters it looks like he did his best to particularize and what's most attractive to your argument and concerns me is did he make a legal error if so i need to start with what is the rule of law that's appropriate are you saying if you stayed without a request and it wasn't used you're still entitled to it because you were sitting there i don't think you're saying that or are you saying regardless of requests if they utilize your services you get a priority that's it and the second thing exact and you're saying that he said and then it was compound by the district court that you only get it's easy to do what was request for judge brown and the district court judge said that's easy for us to do this is what they requested will give you only that nothing more not the generators do i have your argument right yes you are correct and the the issue that we take with this desponding or this additional requirement to just show a specific request in addition to actually providing services actual use of services you also have to show this existed they're making a ton of money two million dollars whatever a month off oil that's right so what so what's your best case a going to tell us it's our own cases i guess what's the best description of what a debtor in possession does to therefore induce hence you get your priority the the the best fifth circuit case on this point is the trans american natural gas case that both that case and the jack wade case are both sided by the lower courts factually trans american is more similar because it involved a creditor who was providing casing for the drilling of oil wells which is more factually similar to the broad scope of services that neighborhood's was providing in this case another similarity is that you had a debtor in trans american that raised an offset claim whistler raise an off sick claim in this case the bankruptcy court rejected that that's not on appeal but there's the court was considering benefit so under the fifth circuit standard you have three things the claim must arise post petition to me that's that's no question that satisfied here in fact it's the rejection of the contract that eliminates any doubt because you don't say well mr that ok next issue as a result of actions taken by the debtor in possession you asked should in a perfect world would you have gotten a separate agreement that spelled out post rejection we're going to do one two three four in a perfect world but what we do have and it's stipulated undisputed daily drilling reports that reflect each morning neighbors and whistler met identify the scope of work for that day the work is performed neighbors then delivers a report to whistler here's all the work we did and if you look at those reports which are trial exhibit nine you'll see each one of them will say we were working as directed by the operator and then it provides a summary of the task and most importantly whistler signed those each day confirming we ask neighbors to do this work and they did so i think that's the functional equivalent of perhaps even more persuasive refinements on the broader fis circuit standard of benefit to the estate so what we needed to show and to service that it was a benefit to the estate the benefit in this case was derived by the fact that was sorted three things number one and most importantly they had to receive a waiver from bessie of the requirement that production shut in going to the mobilization otherwise they're shut in for two months they lose four million dollars revenue so that was the main most important thing they're waiting on but they also need a release from the preservation order that happened on october fourth and they needed to operationally they needed to remove their bay right which is similar to a from certain of the equipment before you could be mobilized to get you had to regulatory issues one operational issue the production shutting waiver was not even requested by whistler until october fifth it was received on october twent commenced the same day so whistler control the timing of that was slower benefited from the services the services are really not separable i know the bankruptcy court does that but they're there logically related you know if you're providing living quarters you need to provide the power for those living quarters under spewed that the generators the cost of the generous was not included the cost of the generators was part of the day rate services but when he did qualify you for the quarter you're saying that the power of the quarter is require the generators and those work compensate right and we know that for a fact because the the  one additional crane and the two additional quarters that are part of whistler's exhibit sixty six which is what the bankruptcy court based it's a terminations on those who are actually done under a july sixteenth amendment to the drilling contract so you can see with it spelled out two quarters at two hundred dollars per day it's four hundred one additional crane at twelve hundred dollars per day there's or sixteen hundred dollars and that was separate from what was covered under the original drilling contract the broader list of all the equipment that was being provided i also want to point out right here the district court made a finding that neighbors provided and whistler accepted services that were more than just what the bankruptcy court based the the administrators claim award on so the bankruptcy court says i'm going to limit this to only what's listed exhibit sixty six they characterize it as only what was were requested but if you actually go and look at the testimony from whistler c e o robert wichard that's not even what he says he says this is a summary of what we've decided we are neighbors but put that to the side even if the bankruptcy court was right that's all that was requested that's not the standard the standard is whether we look at it under the more broad benefit analysis from trans american or whether we use georgian says actual use will satisfy inducement here you have actually used you have the district court making a finding that there was actual use yet still saying but i'm going to a irm the bankruptcy court because the bankruptcy court made a finding as to where this was all that was specifically requested and that that becomes the real problem here so under this framework a creditor would have to show not only don't provide the work and not only did the debtor accept the work but the debtor specifically requested each component of the services that i was providing because let's say we which we're not to say we do accept this argument in the bankruptcy court to court should go on further there still is the obligation that each individual item in your six point nine claim have benefited the state and i guess perhaps more of a question for the other side if you win in part is that when does that mean you win and home as there is no distinction among your various claims each of these things are benefiting in the same way  separate service and show a benefit in dollars and cents for each separate service that would be problematic but that my point is that's not what trans american requires trance american says the benefit can be established generally in terms of days or cost incident to the operation of the business and that's what we have here we have and the bank you don't know if they're if if what you did during all this period wasn't even being you say you are essentially storing it because you don't have some use laying site for you could include the cost of stuff that's just being stored in the news this is a good i think a good opportunity it we could if i could point to court to the handout that's up there which is the color photograph of the platform and the rig and what you'll see here is that the neighbors equipment essentially occupies this top half of the platform so this these items are several and you don't take one away simply because it's not being use right offshore version of the request of part or whole for me is once they all agree it's got to be demobilized if you delayed or you moved slowly that wouldn't be included if to look at the the two separate if you component separate the pre mobilization and the demobilization what he found on the demobilization was number one it was sorted requested but two there wasn't really a benefit to the estate because he says that's just a consequence of contract rejection our argument there is it's not the contractual obligation for demobilization that makes an administrative claim it's the regulatory obligation under section two five zero point one seven zero three of the  priority and one other issue i want to address it has to do with this notion that this is really just a rejection damages claim it's not and that quite frankly is straightforward if this w rejection damages claim what we would measure would would be what was neighbors entitle to under the contract so let me give you an analogy if neighbors had a contract that was for two years they were guaranteed payments totaling one million dollars a year for two years and w rejected the contract on their one year in then you would say well the benefit of the bargain under that is one million dollars the second year that neighbors did not receive that revenue those are not the facts this is a administrators claim based on use of services not for amounts that were the benefit of the organ under the contract earache so if i speak too loudly it's because i can't hear how loudly i'm speak and all i hear is myself rattling around in my brain so i appreciate that up apologize up front if it doesn't work out two as judge brown found we have availability and we think that the demonstrative is very very conveying of the fact that this rig and the cranes and the quarters that were sitting on top of our hella pad were they are after the contract was rejected it's not like you could flip a switch and they could be gone and i think the evidence days later and weeks we agreed to reject the process as you have to have noticed so that water wasn't entered in until july some five to six days later wester sent a letter that said we want your r the platform you need to give us a demobilization plane why because you have to demobilize a rig to get it off the platform with the multi stage operation and that occur it occurred over a long period of time judge brown made a pivotal finding we think that there was no inducement by whistler that the rig and neighbors acquit must stay on the platform for as long as it did he mentioned that there were discussions back and forth perhaps we can work out as judge higginson said an agreement post rejection that didn't work there was pre war about maybe a critical vendor there could never be made a d possession this then has to be really scrupulous to avoid any use in other words it's simply got to become like that pipeline inert storage third party can't collect but the minute the debtor in possession says we love your generators to power up our quarters they've got to pay for that incidental and overhead you're ours let me let me let me point out a couple of things number one i think the bankruptcy court made a finding way all of that if we're talking about generators that's one thing but the evidence about generators and we need to make clear about this platform had several producing wells that were powered by whistler generator those wells preexisted neighbors rig being on the on the platform so we have a generator that came in that was part of the overall day rate but a very small part of the overall day rate because the day rate applied to the rig to the big cranes to the quarter well the quarters were separately billed but the part of the day rate for the generators the generators ray and the rig neighbor's property and the quarters neighbor's property and so what i think the court was able to do was say that there are some services that are incidental to the fact that the rig is on the platform and the generator is one of the neighbors people stayed in those quarters those quarters are on our hell a part hell a pad was not separately charge for we couldn't use our hell a pad as long as it was on top of quarter on top of our at the generators ran neighbors rig which it had to do so that neighbors could maintain its rig so that as a testimony established it would have a good rig to take off and put somewhere else and the generators ran the quarters the generators did not as a matter of fact wrong on our platform or our production facilities we had our own generators for that is the difficulty with accepting that is the district court's order then simplifies it down to i need a request and even if that's blurred then the district court three times says that's the easy way to do this only what's requested and then just to finish the thought because it's a difficult point for me you and your brief it's not a footnote eighty six that you try to deal with that sentence the judge mulatu put in about in fact materials and services were used that weren't paid for and a footnote treatment of that is much more problematic because it looked like both judges here are saying we've got an easy way to deal will just give priority i think there's two different approaches here i think that judge brown i will tell you  i don't know what judge mulatto was doing in that senate i don't know judge brown didn't do that judge brown made a determination down at the use was of what was requested he did not make findings that there were other gives he made findings that there were discussions he made findings that you had to have a demobilization plan he made findings that the mobilization plan was in no way shape or form a decommissioning he made findings that the alleged services provided by neighbors didn't rise to the level of an administrative experience and i think the reason is that there was some evidence in the record that some services were provided and the debtor used them but if we look at the evidence in the record it was about values being timed it was about we did some work on the production facility but the problem is the better testimony was we don't know about any valves being termed they didn't have authority to be in the production facility and they had no wherewithal to perform the services so while there is evidence it's very weak and it's very mild it was rebutted and i think it's perfectly clear that judge brown said i don't testimony about those data sheets as well the data sheets run of spain from the time where we paid for services temporary ban motherwell till the time where they they work down to one person other than a supervisor and kind of a person who walked around a quote to push but what you will see is if they provide what they were going to do and the debtor operators the better zamperini the platform there's no doubt about that but the services they provided were all in their rig they were not on our platform and not on our production facilities and if you look at the all of the time period the daily reports show one person waiting ok you're waiting but that was incidental and i think the bankruptcy court made this conclusion that that was incidental to the fact that neighbor's property was owned the block or they had to take care of their own property we're not taking care of your  made factual findings and it's perfectly clear to me that there was a total basis for him not to believe ok but that's he writes that compensate what you requested but not use that wasn't requested now you say let me finish now you say what he really did was he didn't believe there was other use and we can't explain judge molasses statement that there was what's your answer my answer is that i really judge brown opinion to be not that they provided services for our use that was beneficial to the estate i read his opinion this saying that the services they provided that were beneficial to the state were those that we requested it's a it's it's apples and oranges i don't think he made the room that there were services and a quick and things used that would otherwise be an administrative expense except that we didn't ask for i don't believe that's in his ruling that's why i don't understand judge alonzo sentence ok because i think the only thing i can  is that judge my logs i was trying to thread a needle did we use their services that they had to provide for their own equipment through the daily reports because bending reports are limited to what they're doing on their cranes and when they are and what they're doing for us on their clients is what we ask them to do and we've got a statement that's in the record we got overtime if it cost over time that's in the record and that's what we calculated our obligation upon one it was separately carved out separately billed for and yet what we're hearing today and what we've heard  is that because the rig was the day rate applies because that's the value of the services provided to the estate i read mark pan hurstville testimony in your strong cross and that was testy but he didn't say it's just because we're there he said it was every single day he confirmed full use where my question to you then is can you point me since you did the cross examination to where you impeach him on his statement that it was constant use they never saw it we worked on production they never heard of it i never saw it robert which are testimony in my recollection is that they gave us their reports and we approved them but their reports were about the use of the rig and i don't know how to get away from that because we had we needed something but because we had no claims we used the crane and we had no operator we couldn't operate their crying's they had to provide a provided the operator for the cranes but they had the person on there and the person was waiting for the most of the time until demobilization where they started working under their contractual obligation to demobilize what we have is use but it's all of their property and that's something  i think is missing because when we look at when we look at trans america that's a post petition the sale of pipe to a debtor in possession and the only argument was i don't owe it because you sold me defective pipe and the court made a finding in a conclusion that would use fifty million feet of pipe and some of it might have been defective but the fact that you sold pipe to a debtor in possession is a post petition contract that generates a use of our property and a transaction that causes a benefit to the estate and but in unrequested use that allows the estate  quested use had nothing to do with production the production was the production it had nothing to do with the rig the well that the rig was all on the platform to drill was temporarily abandoned in june of two thousand and sixty by the order of best they did it we paid for it that was it they did an investigation they took the choke manifold off took a chipping tool away that was the preservation of water the preservation order imposed upon neighbors that it take property off the rig and store it for purposes of further investigation and told us to hold documents that we had to hold in connection with our operational platform so the i want to port to understand that the rig had nothing to do with us producing all of gas that was separate the rig was dead except they want to use it again once they got rid of it once they got off the platform and we have testimony in the record down at as of the date of the trial zero percent of this type of rig was big in service and during the time period we were talking about forty percent of the neighbors rig fleet was in service rigs two in service including this one which was not in service because it had finished its job with the t a proposition in your brief twice on page one hundred thirty one you say that they got rent free storage for their equipment did judge brown ever make a finding of fact as to that part that was our our i don't think judge brown made a finding that they got rid free storage i think his finding was that their storage did not provide a benefit to us otherwise he would have granted and administrative experience based on simply storing their on our property that's our position that they got essentially r free storage and they were in no hurry to move the rig didn't have anything to do with i moved it it went to dry dock so we we have a trans america their best case involved post petition say of pop icon trump transaction we think that judge brown was dealing with the transactional requirement of jack way he used jack way we think that neighbors has misstated the standard used by judge brown when it said that judge brown standard is heightened because judge brown would require that we agree that we owe it before could be an administrative expense client and they've said that a couple of three times in their brief particularly on page eleven page eighteen of the court's the services provided or a candid neighbors be enough vailable to provide services as opposed to neighbors actually providing services to the dead in possession that's on page eighteen second full paragraph last  day rate during that period that to me your honour's says the court handled everything and it says that what they provided is what we asked for not that they provided things other than we asked for but we don't know it because we didn't ask for i think there's a difference between what the bankruptcy court concluded and that's why i've just got to be fined i don't understand the senate's in judgment law heart and we don't shouldn't we send it back and ask him what he meant we think it's harmless your honor we don't think she was carving out a standard that says that it no matter what you use if you don't ask for it i think she was trying to thread a needle it's very easy for me to say and to to say and i believe this down there was evidence the question of the neighbors people got up and talked about things they did unfortunately the evidence was refuted and the judge made a finding he doesn't didn't make detailed findings of fact conclusions of law with respect to each and every allegation of what neighbors did but he made a finding that the suppose it activities that helped our production that they say we used we did otherwise i think he would have given us an administrative expense because they said we wouldn't turn valves our people said there was no turning back as i couldn't get down there we helped in the production arena they were not involved in the production arena couldn't get involved and couldn't go down there that would have been a safety violation is plenty of testimony about that so we never knew where that was coming from and we don't think the judge knew about it either maybe that's what judge will also was saying maybe she was trying to thread the needle between services that quote were you but because they were part of the safety program on the platform and because neighbors was on the platform it had to do it and  this is a summary of the amounts that we've agreed that we open to neighbors and then he's asked where did you come up with the amounts and he says we used either rates that were spelled out in the dims to the contract or the invoices we received from neighbors that's the testimony about exhibit sixty six but really my argument isn't about whether the judge was correct or incorrect as a matter of fact about what whistler requested but saying is the administrative claim standard does not require that each separate service and each separate piece of equipment be requested by the donor but if the use was just sent telus just turning valves and one person in the morning and essentially what that means is the functional equivalent of judge brown saying i don't believe your claim that anything else was used other than what i compensate you for then you wouldn't have a claim right i disagree and here's why a one there's never less than three men three to ten men on the platform from neighbors during the relevant four month and that's a benefit though to whistler for two independent reasons one because there's a regulatory obligation to see a force that all of the equipment and you've got the picture of it all that equipment offshore platform has to be regularly maintained by properly trained personnel and mr bourne testified if you don't maintain the sequenom and in the salt water environment you don't keep these boats loading you don't do all these things then you're going to end up with things to get stuck in that's logical and then you have to cut them off and then you're going to have to shut in production so whistler unquestionably benefited from the equipment being maintained on that offshore platform and in terms of the actual use of items beyond just the the east crane demob crane and that the two quarters in additional labors not only is it uncontroversial in the record that there was additional use of things like the compressors the generators other quarters besides about would you get money if they hadn't used things but apollo group in the far distant ups who are saying we need you to stay because we're still hoping to be able to get back to that well absolutely you would get money even though you do nothing because you're being asked to sort of hold in place and you've got to keep all the things lubricated yes is the answer now it the way i mean i may actually understand the question it's not do we do nothing at all but are certain items not being used but even if your question was if you do nothing at all and i want to point the court to the kinsey case and this is interesting because you have during the same time frame a bankruptcy court and a district court in the western district of louisiana making a decision in the kempsey case which is in direct conflict with this case because in kinsey the court is saying well there's two divergent lines of cases one says you need to show actual use in order haven't ministry and the other says if the debtor just makes a business decision that it w benefit from attaining the support whether is it or not that alone will entitle the creditor to administrative claim and the reasons and direct conflict is because that court awarded the administrative claim without regard to actual use here you've got you do have evidence of actual use but you have the court imposing yet one more requirement which says in addition to evidence of actual use you have to show evidence that there was a specific request for that and so that is a significant problem and there was no there was no free storage of the rig any time the everything is is part and parcel and you can't demobilize part of it without all of it so the part they needed that they meant they were requesting necessarily required that the entirety of the equipment stay on the platform and whistler controlled when the property could be demobilize from th