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.

Appeals from the United States District Court

for the 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 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 12, 2018

Lyle W. Cayce

Clerk
No. 17-30313

2

the Deepwater Horizon Economic and Property Damages Settlement 

Agreement (the “Settlement Agreement”). In each decision, the Appeal Panel 

found that PowerSouth was not eligible to bring a claim under the Settlement 

Agreement because its unmanned 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

“The 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 of its 

electricity to a safe level for residential and commercial use. The nineteen 

substations in question are unoccupied, fenced-in areas containing equipment 

necessary to complete the “step-down” process. PowerSouth does not have any 

employees assigned to the substations; rather, PowerSouth remotely monitors 

the substations from the company’s headquarters. If, through this remote 

monitoring, PowerSouth detects a problem at a particular substation, it may 

dispatch an employee to the substation. However, on most occasions, 

PowerSouth is able to diagnose a problem and make necessary adjustments 

using its remote capabilities.

On January 2, 2014, PowerSouth filed twenty business economic loss 

claims with the Deepwater Horizon Court Supervised Settlement Program,

 

1 Claimant ID 100218776 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 

headquarters. The Claims Administrator, however, denied PowerSouth’s other 

nineteen claims that related to PowerSouth’s individual substations.

PowerSouth appealed those denials to nineteen Appeal Panels, 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 jurisdiction over the underlying claims,2

and we have 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 district court abused its discretion by asking “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. CONST., 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

In order to dispose of this appeal, we only address PowerSouth’s 

argument that the district court erred in denying discretionary review because 

the Claims Administrator’s denials 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 carried out by 

PowerSouth personnel from its [company headquarters].” From 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 do not satisfy the original definition, we do 

not reach PowerSouth’s due process argument. 
No. 17-30313

5

The 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.