### 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 t hat 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 June 27, 2017 Lyle W. Cayce Clerk Case: 16-30521 Document: 00514051001 Page: 1 Date Filed: 06/27/2017No. 16

- 30521

2 Panel decision denying its initial c laim

. 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 commercia l rental property owner

. In order to recover on its claim for damages, Aldrich
must meet the requirements set forth in the Settlement A greement. Namely, Aldrich must be an entity “doing business or oper ating in the Gulf Coast Areas . . . [that] owned or l eased 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 “Z one 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). Th is test has two parts and allows the claimant to select a compensation period and a c omparable 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 A greement. See ROA.2062. Aldrich did not have a commer cial tenant for many years preceding the spill. Aldrich ’s last c ommercial tenant ’s lease ende d 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 cont inued 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 Case: 16-30521 Document: 00514051001 Page: 2 Date Filed: 06/27/2017No. 16

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3 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 P ost

- Re

- Review Denial Notice in July 2015, denying the c laim on the same basis . ROA.1539

– 42. Aldrich timely requested reconsideration of this denial, which received a Post

- Reconsideration Denial Noti ce 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, t he 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 dis cretionary 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. 2 016). 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 pote ntial 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 interpretat ion of the Settlement Agreement.” Id. at 316; see also In re Deepwater Horizon , 785 F.3d Case: 16-30521 Document: 00514051001 Page: 3 Date Filed: 06/27/2017No. 16

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4 986, 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 frustrat e the clear purpose of the Settlement Agreement to curtail litigation.”). I t 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 substantiall y 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 Agr eement 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 w hat the law should be here, their dispute is by defini tion a factual one

. Importantly, b oth parties agree that a business need not have earned revenue during 2010 to qualify as being in bus iness. Aldrich argues, however, that the review panels incorrectly used a lack of revenue in 2010 as the only outcome de terminative factor, rather than using a totality of the circumstances
test. Aldrich alleges that there is a split among the Appeal Panel s on this issue and that allowing the viability of a claim to be decided based on a randomly assigned panel is a violat ion 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 t he broker lapsed in 2009, despite some evidence that it continued to look for a lessee, it is not particularly Case: 16-30521 Document: 00514051001 Page: 4 Date Filed: 06/27/2017No. 16

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5 strong evidence. Aldrich had not been earning revenue, or leasi ng or advertising the property since 200 8. Given the conflicting evidence in the

r ecord re garding whether Aldrich was “doing business or operating” a t the time of the oil spill, the Appeal Panel did not abuse its dis cretion 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 deci sion of the Appeal Panel

. IV. Because the district court’s denial of discretionary review does not constitute an abuse of discretion, we AFFIRM. Case: 16-30521 Document: 00514051001 Page: 5 Date Filed: 06/27/2017