IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30521

CLAIMANT ID 100236236, 

 Requesting Party - Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY; BP, P.L.C., 

 Objecting Parties - Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:16-CV-2085

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

The appellant is a commercial rental property owner that filed a 

Business Economic Loss claim under the Deepwater Horizon Economic and 

Property Damages Settlement Agreement (“Settlement Agreement”). The 

owner challenges the district court’s denial of discretionary review of an Appeal 

 

* 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

June 27, 2017

Lyle W. Cayce

Clerk

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No. 16-30521

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Panel decision denying its initial claim. Because the district court did not 

abuse its discretion in declining to review the claim, we AFFIRM.

I.

This case arises from the Settlement Agreement involving the Deepwater 

Horizon oil spill. Appellant Aldrich Investments (“Aldrich”) is a commercial 

rental property owner. In order to recover on its claim for damages, Aldrich 

must meet the requirements set forth in the Settlement Agreement. Namely, 

Aldrich must be an entity “doing business or operating in the Gulf Coast Areas 

. . . [that] owned or leased real property in the Gulf Coast Areas at any time 

from April 20, 2010 to April 16, 2012.” Settlement Agmt, § 1.2; ROA.1855–56

(emphasis omitted). Because Aldrich was in “Zone A,” near the spill, it is not 

required to provide any evidence that the spill caused a revenue loss, and 

instead must meet the relevant revenue-pattern test. See ROA.2045; In re 

Deepwater Horizon, 744 F.3d 370, 375 (5th Cir. 2014). This test has two parts 

and allows the claimant to select a compensation period and a comparable 

benchmark period to determine its business economic loss, if any, due to the 

oil spill; if a claimant lost money as a result of the spill, it is entitled to 

compensation under the Settlement Agreement. See ROA.2062. 

Aldrich did not have a commercial tenant for many years preceding the 

spill. Aldrich’s last commercial tenant’s lease ended in August 2008, after 

which it enlisted a broker for one year to try to rent the property. Although the 

broker agreement ended in September 2009, the broker continued to try to rent 

the property out past the date of the oil spill, including the period from January 

to April 2010. ROA.1548–71. Aldrich alleges that on both April 1, and April 19, 

2010, the broker had a prospective tenant actively pursuing the property.

ROA.1561, 1565, 1567–71. After the spill, the broker’s efforts to rent the 

property continued, albeit unsuccessfully. ROA.1169–79; ROA.312–28. Aldrich 

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incurred over $60,000 of expenses to the property throughout 2010. ROA.318–

23. 

In July 2013, Aldrich filed a Business Economic Loss claim form, which 

was denied in November 2014. The Claims Administrator stated that Aldrich 

was not doing business or operating in the designated area at the time of the 

oil spill. ROA.1531–34. Aldrich requested review, and the Administrator 

issued a Post-Re-Review Denial Notice in July 2015, denying the claim on the 

same basis. ROA.1539–42. Aldrich timely requested reconsideration of this 

denial, which received a Post-Reconsideration Denial Notice a month later, 

again on the same grounds. ROA.1543. Aldrich then requested a call from the 

analyst denying the claim to get more detail about why the claim was denied. 

According to Aldrich, the analyst indicated it was because Aldrich did not 

report any revenues for 2010. ROA.1572–73; 1576–82. 

Aldrich then filed a notice of appeal in October 2015. ROA.1574. The 

Appeal Panel affirmed the claim denial. ROA.1798–99. Aldrich appealed this 

to the district court, which declined to use its discretionary review power over 

Aldrich’s claim. Aldrich now appeals the decision of the district court. 

II.

“We review the district court’s denial of discretionary review for abuse of 

discretion.” Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 

(5th Cir. 2016). We generally assess whether the district court abused its 

discretion in not reviewing the claim by looking to “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.” Id. (citation omitted). However, we have been careful 

to note that it is “wrong to suggest that the district court must grant review of 

all claims that raise a question about the proper interpretation of the 

Settlement Agreement.” Id. at 316; see also In re Deepwater Horizon, 785 F.3d 

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986, 999 (5th Cir. 2015) (“We do not intend any part of this opinion to turn the 

district court’s discretionary review into a mandatory review. To do so would 

frustrate the clear purpose of the Settlement Agreement to curtail litigation.”). 

It may be an abuse of discretion to deny a request for review that raises 

a recurring issue on which the Appeal Panels are split if “the resolution of the 

question will substantially impact the administration of the Agreement.” In re 

Deepwater Horizon (Smith), 632 F. App’x 199, 203–04 (5th Cir. 2015). However, 

it is not an abuse of discretion to deny a request for review that “involve[s] no 

pressing question of how the Settlement Agreement should be interpreted or 

implemented, but simply raise[s] the correctness of a discretionary 

administrative decision in the facts of a single claimant’s case.” In re Deepwater 

Horizon (Sexton), 641 F. App’x 405, 410 (5th Cir. 2016).

III.

Aldrich argues that it was “doing business or operating” within the 

definition of the Settlement Agreement at the relevant time and so is entitled 

to a payout from BP. Because both parties agree about what the law should be 

here, their dispute is by definition a factual one. 

Importantly, both parties agree that a business need not have earned 

revenue during 2010 to qualify as being in business. Aldrich argues, however, 

that the review panels incorrectly used a lack of revenue in 2010 as the only 

outcome determinative factor, rather than using a totality of the circumstances 

test. Aldrich alleges that there is a split among the Appeal Panels on this issue 

and that allowing the viability of a claim to be decided based on a randomly 

assigned panel is a violation of the Settlement Agreement. BP notes, however, 

that of the multiple factors both parties agree should be considered, only one—

the presence of a broker—supports Aldrich’s claims to be “doing business or 

operating,” and that because the agreement with the broker lapsed in 2009, 

despite some evidence that it continued to look for a lessee, it is not particularly 

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strong evidence. Aldrich had not been earning revenue, or leasing or 

advertising the property since 2008. Given the conflicting evidence in the 

record regarding whether Aldrich was “doing business or operating” at the time 

of the oil spill, the Appeal Panel did not abuse its discretion in affirming the 

denial of Aldrich’s claim.

Because Aldrich has failed to show either that the Appeal Panel erred in 

its interpretation of the Settlement Agreement, Holmes Motors, 829 F.3d at 

315, or that the dispute involves a “pressing question of how the Settlement 

Agreement should be interpreted or implemented,” and instead has merely

“raise[d] the correctness of a discretionary administrative decision in the facts 

of a single claimant’s case,” In re Deepwater Horizon (Sexton), 641 F. App’x 405, 

410 (5th Cir. 2016), the district court did not abuse its discretion in declining 

to review the decision of the Appeal Panel. 

IV.

Because the district court’s denial of discretionary review does not

constitute an abuse of discretion, we AFFIRM.

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