### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 30313

consolidated with 17

- 30314, 17

- 30315, 17

- 30317, 17

- 30318, 17

- 30320, 17

- 30321, 17

- 30323, 17

- 30324, 17

- 30325, 17

- 30326, 17

- 30327, 17

- 30328, 17

- 30329, 17

- 30331, 17

- 30332, 17

- 30334, 17

- 30335, 17

- 30336

CLAIMANT ID 100271726,
Requesting Party

– Appellant

v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C.,
Objecting Parties

– Appellees.

Appeal s from the United States District Court for th e Eastern District of Louisiana USDC No. 2:17

- CV

- 976

Before DAVIS, JONES, and HIGGINSON, Circuit Judges

. PER CURIAM: * In these consolidated cases, PowerSouth Energy Cooperative (“PowerSouth”) challenges the district court’s refusal to review a series of Administrative Appeal Panel decisions pertaining to the proper application of

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 12, 2018 Lyle W. Cayce ClerkNo. 17

- 30313

2 the Deepwater Horizon Economic and Property Damages Settlement Agreement (the “Settlement Agreement”) . In each decis ion, the Appeal Panel found that PowerSouth was not eligible to bring a claim under the Settlement Agreement because its unmann ed electrical substations did not constitute “facilities ” as that term is defined in the Agreement. For the reasons stated below, we AFFIRM. I. Factual and Procedural Background “T he Deepwater Horizon oil spill and the ensuing Settlement Agreement ‘are no strangers to this court.’” 1 Therefore, we only discuss the facts necessary to resolve this appeal. PowerSouth is an energy cooperative that generates electricity and provides that electricity wholesale to 16 retail distributors , who, in turn, deliver electricity to residential and business customers. As part of this

process, PowerSouth uses its substations to “ step

- down ” the voltage o f its electricity to a safe level for residential and commercial use

. The nineteen substations in question are unoccupied, fenced

- in areas containing equipmen t necessary to complete the “step

- down ” process. PowerSouth does not have any emplo yees assigned to the substations; rather, PowerSouth remotely monitors the substations from the company’s headquarters. If, through this remote monitor ing, PowerSouth detects a problem at a particular substation, it may dispatch an employee to the substati on . However, on m ost occasions, PowerSouth is able to diagnose a problem and make necessary adjustments using its remote capabilities. On Janu ary 2, 2014, PowerSouth filed twenty business economic loss claims with the Deepwater Horizon Court Supervised Se ttlement Program ,

1 Claimant ID 100218 776 v. BP Expl. & Prod., Inc. , --- F. App’x

--- , 2017 WL 4708256, at *1 (5th Cir. Oct. 17, 2017) (quoting Claimant ID 100128765 v. BP Expl. & Prod., Inc. , --- F. App’x

--- , 2017 WL 4310087, at *1 (5th Cir. Sept. 27, 2017)).No. 17

- 30313

3 which is directed by the Claims Administrator

. The Claims Administrator has not ruled on PowerSouth’s first claim, which pertains to its company headquarter s . The Claims Administrator, however, denied PowerSouth’s other nineteen claims th at related to PowerSouth’s individual substation s

. PowerSouth appealed those denials to nineteen Appeal Panel s , which unanimously affirmed the Claims Administrator with nearly identical reasoning. Each Panel found that the substations exist solely to “step

- down” the voltage of electricity and that the mere transporting of power does not transform the isolated, unoccupied substations into “facilities” as that term is defined by the Settlement Agreement. PowerSouth then filed multiple requests for discretionary review with the district court. The district court denied those requests, and PowerSouth appealed.
II. Jurisdiction and Standard of Review The district court had admiralty jurisdic tion over the underlying claims , 2 and we h ave jurisdiction over this consolidated appeal under the collateral order doctrine. 3 We apply an abuse of discretion standard of review to the district court’s denial of discretionary review of the Settlement Agreement. 4 We generally assess whether the dis trict court abused its discretion by ask ing “whether the decision not reviewed by the district court actually contradicted or misapplied the Settlement Agreement, or had the clear potential to contradict or misapply the Settlement Agreement.” 5

2 U.S. C ONST ., art. III, § 2; 28 U.S.C. § 1333 ; 33 U.S.C. § 2717(b) ; 43 U.S.C. § 1349(b) ; 46 U.S.C. § 30101

. 3 In re Deepwater Horizon , 785 F.3d 1003, 1009 (5th Cir. 2015).
4 Claimant ID 100250022 v. BP Expl. & Prod., Inc. , 847 F.3d 167, 169 (5th Cir. 2017) (citing Holmes Motors, Inc. v. BP Expl. & Prod., Inc. , 829 F.3d 313, 315 (5th Cir 2016)).
5 Holmes Motors , 829 F.3d at 315 (quoting In re Deepwater Horizon , 641 F. App’x 405, 409

– 10 (5th Cir. 2016)).No. 17

- 30313

4 III. Discussion
I n order to dispose of this appeal, we only address PowerSouth’ s argument that the district court e rred in denying discretionary review because the Claims Administrator’s denial s contradicted the Settlement Agreement. 6 To that end, PowerSouth argues that its substations qualify as “facilities” under section 1.2.1 of the Settlement Agreement eligibility criteria and thus its claims based on those substations should not have been denied. The Settlement Agreement defines a “facility” as “[a] separate and distinct physical location of a Multi

- Facility Business at which it performs or manages its operations.” PowerSouth argues that it performs or manages its operations from its substations because the substations are a necessary component of providing electricity to consumers. The substations, however, are mere conduits for the electricity that PowerSouth provides through its operations at company headquarters

. As PowerSouth’ s CEO noted in his affidavit, “[w]hile PowerSouth periodically is required to send personnel to its substations to perform maintenance and repairs, the normal day

- to

- day function of PowerSouth’s operations (the delivery of power to our member cooperatives) is performed using the remote monitoring and control which is ca rried out by PowerSouth personnel from its [company headquarters] .” F rom the record, it is abundantly clear that PowerSouth performs and manages its operations from company headquarters

— not from the isolated, unmanned substations.

6 PowerSouth also argues that the Claims Administrator’s passage of a “policy” that purportedly re
- defined the term “facility” after PowerSouth had submitted its claims violated PowerSouth’s due process rights. This argument, however, presupposes that the substations qualified as “facilities” under the original definition of that term in the Settlement Agreement. Because we find that the substations d o not satisfy the original definition , we do not reach PowerSouth’s due process argument.No. 17

- 30313

5 T he Claims Administrator ’s decisions did not contradict or misapply the Settlement Agreement, and, accordingly, the district court did not err in denying discretionary review of those decisions

. AFFIRMED.