IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20151

FORTUNE NATURAL RESOURCES CORPORATION, 

 Appellant

v.

UNITED STATES DEPARTMENT OF INTERIOR; ATP OIL & GAS 

CORPORATION, 

 Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Fortune Natural Resources Corporation (“Fortune”) owns a percentage 

working interest in a lease with ATP Oil & Gas Corporation (“ATP”), who filed

for bankruptcy.1 Fortune asserted a claim in ATP’s bankruptcy proceedings for 

decommissioning costs related to the lease. ATP sought and received approval 

from the bankruptcy court—over Fortune’s objection—to sell certain shelf and 

deepwater assets. The Final Sale Order was not stayed, and the sale closed. 

 

1 Black’s Law Dictionary defines working interest as “[t]he rights to the mineral 

interest granted by an oil-and-gas lease, so called because the lessee acquires the right to 

work on the leased property to search, develop, and produce oil and gas, as well as the 

obligation to pay all costs.” (10th ed. 2014).

United States Court of Appeals

Fifth Circuit

FILED

November 19, 2015

Lyle W. Cayce

Clerk

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2

Fortune appealed the Final Sale Order to the district court. The district court 

dismissed the appeal, holding that Fortune lacked standing to appeal the 

bankruptcy court’s ruling and that, in any event, the appeal was statutorily 

moot. Fortune appeals this dismissal order contending that it has standing to 

appeal and that the appeal is not moot. Because Fortune has failed to prove 

that it was directly and adversely affected pecuniarily by the ruling of the 

bankruptcy court, it lacks standing to appeal, and we AFFIRM. 

I.

ATP, a former offshore oil and gas exploration and production operator 

on the Outer Continental Shelf in the Gulf of Mexico, filed for bankruptcy relief 

on August 17, 2012. Fortune owned a 12.5 percent working interest in a lease 

that was considered one of ATP’s assets (the “Fortune Lease” or “Lease”). 

Fortune and ATP were parties to a Joint Operating Agreement, which 

mandated that any plugging and abandonment operations be accomplished by 

ATP, as operator, with the costs, risk, and net proceeds, if any, to be shared by 

co-lessees in proportion to their participating interests. The Fortune Lease 

terminated on November 11, 2010. As a result, ATP was required to conduct 

decommissioning operations on two wells, a platform, and a pipeline. Fortune 

filed its proof of claim on January 28, 2013, in the amount of $3,385,300, 

representing the portion of the decommissioning liability it would be forced to 

cover in the event that ATP did not fulfill its decommissioning obligations 

under the Joint Operating Agreement. 

During the bankruptcy proceeding, ATP filed motions seeking 

bankruptcy court approval of a sale of substantially all of its assets (the 

“Sale”).2 The United States Department of the Interior (“Interior”) objected to 

 

2 ATP, through two emergency motions, sought approval to sell its shelf assets and its 

deepwater assets. Because ATP did not receive any qualifying bids on its shelf assets, it 

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the Sale because it had not consented to it, and among other reasons, the Sale 

would have left ATP incapable of performing its remaining decommissioning 

obligations under federal law. Fortune also objected to the Sale, even though 

the Fortune Lease was not part of the assets of the Sale.3 Interior withdrew its 

objection prior to the Sale following successful negotiations with Bennu Oil & 

Gas, LLC (“Bennu”), the ultimate purchaser, after Bennu agreed to fund a 

$44,255,000 trust (“Trust”) to be administered by the Bureau of Ocean Energy 

Management (“BOEM”), an agency under the Interior, to address ATP’s 

remaining decommissioning obligations. Initially, Fortune filed a limited 

objection and reservation of rights with respect to the shelf sale in the event 

that the shelf sale would not produce sufficient funds to cover the 

decommissioning obligations under the Fortune Lease. Subsequently, Fortune 

asserted an objection at the Interim Sale Hearing—after the shelf assets and 

deepwater assets were combined into one Sale—when it realized that BOEM 

planned to use the trust funds for leases where there were no co-liable parties, 

i.e., not the Fortune Lease. Fortune argued that the proposed use of the sale 

proceeds was contrary to the language contained in the Interim Sale Order and 

proposed Final Sale Order, which Fortune believed required funding for the 

Fortune Lease’s decommissioning costs. The bankruptcy court overruled 

Fortune’s objection to the sale. 

On October 17, 2013, the bankruptcy court entered a Final Sale Order 

approving the sale of ATP’s assets to Bennu. The bankruptcy court’s Final Sale 

Order was not stayed, and the Sale closed. On October 31, 2013, Fortune 

appealed the Final Sale Order to the district court. Interior moved to 

 

cancelled the auction for the shelf assets and added the shelf assets to the sale of the 

deepwater assets. 

3 The bankruptcy court approved the rejection of the Fortune Lease, along with other

leases, by order dated June 21, 2013. 

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participate as appellee, and the district court granted its motion. The district 

court issued an order dismissing Fortune’s appeal, holding that Fortune lacked 

standing to appeal the bankruptcy court’s ruling and that, in any event, the 

appeal was statutorily moot. Fortune appeals the dismissal order. 

II.

This court reviews a district court’s dismissal for lack of standing de 

novo. Joffroin v. Tufaro, 606 F.3d 235, 238 (5th Cir. 2010). “[T]he putative 

appellant shoulders the burden of alleging facts sufficient to demonstrate that 

it is a proper party to appeal.” Rohm & Hass Tex., Inc. v. Ortiz Bros. Insulation, 

Inc., 32 F.3d 205, 208 (5th Cir. 1994). “In ruling on a motion to dismiss for want 

of standing, both the trial and reviewing courts must accept as true all material 

allegations of the complaint, and must construe the complaint in favor of the 

complaining party.” Id. at 207 (quoting Warth v. Seldin, 422 U.S. 490, 501 

(1975)). Furthermore, to determine whether a party has standing in 

bankruptcy court, courts use the “person aggrieved” test. In re Coho Energy 

Inc., 395 F.3d 198, 202 (5th Cir. 2004). “The ‘person aggrieved’ test is an even 

more exacting standard than traditional constitutional standing.” Id. This test 

“demands a higher causal nexus between act and injury; appellant must show 

that he was directly and adversely affected pecuniarily by the order of the 

bankruptcy court in order to have standing to appeal.” Id. at 203. (internal 

quotation marks and citation omitted). 

III.

Fortune argues that the district court erred because Fortune was directly 

and adversely affected by the bankruptcy court’s Final Sale Order; therefore, 

it has standing to appeal as a “person aggrieved.” Fortune argues that the 

allocation of the Trust funds, as implemented, differs from the proposed 

allocation contemplated in the Interim Sale Order and in earlier versions of 

the proposed Final Sale Order. Fortune argues that prior versions covered 

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decommissioning obligations such as those under the Fortune Lease, while the 

Final Sale Order gave Interior full discretion to allocate the use of the Trust 

funds. Fortune points to language in prior orders indicating that the funds 

would be paid by the purchaser to BOEM “for the performance of 

decommissioning obligations under any or all Federal Leases that do not 

constitute Purchased Assets....” (emphasis added). Fortune interprets this 

language as requiring funding for the Fortune Lease because it was not among 

the Purchased Assets, and as precluding Interior from allocating funds to 

decommission some, but not all, of the leases. Fortune’s construction ignores 

the plain meaning of the words “any or.”4 Such construction is unreasonable. 

Even if Fortune proved that prior versions of the sale order called for a 

different allocation of the Trust fund proceeds, it would still fail to show how 

the bankruptcy court’s Final Sale Order directly and adversely affected it 

pecuniarily. If Fortune could prove that absent the Final Sale Order it would 

have received funds from the bankruptcy estate for its decommissioning 

obligations, then it would have standing to appeal the Final Sale Order because 

Fortune would satisfy the “person aggrieved” test. Under such a scenario, 

Fortune could show that the order of the bankruptcy court directly and 

adversely affected it pecuniarily. But because Fortune did not show that it 

would have accessed any funds from the bankruptcy estate had the court not 

approved the Sale, the Final Sale Order left Fortune in the same position (i.e., 

without any funds from ATP to assist in the decommissioning obligations for 

the Fortune Lease).

Fortune’s argument concerning the merits—that the allocation of the 

sale proceeds violated substantive bankruptcy law—is unavailing because 

 

4 The word “any” is commonly understood to mean “one, no matter what one” or “one 

or more indiscriminately from all those of a kind.” Webster’s Third New Int’l Dictionary at 97.

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Fortune must first have standing before the merits can be addressed. 

Additionally, Fortune’s argument that it meets the “person aggrieved” 

standard because it has already received a letter from BOEM mandating that 

it decommission its Lease misses the mark. Fortune’s payment of 

decommissioning costs may show an injury, but it does not show that the 

bankruptcy court’s order caused this injury. This court’s jurisprudence states 

that the order of the bankruptcy court must directly and adversely affect the 

appellant pecuniarily. See Coho, 395 F.3d at 203. Having failed to present 

sufficient evidence to show that Fortune was directly and adversely affected 

pecuniarily by the order of the bankruptcy court, Fortune does not meet the 

“person aggrieved” test. Therefore, the district court properly ruled that 

Fortune lacks standing. Because this court concludes that Fortune lacks 

standing to appeal, we need not address the district court’s holding on 

statutory mootness. AFFIRMED.

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