IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30167

CLAIMANT ID 100187856, 

 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

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

CARL E. STEWART, Chief Judge:

This appeal arises from the class-action settlement program established for 

civil claims resulting from the Deepwater Horizon Incident (“Spill”). After 

being denied on every level of review within the Court Supervised Settlement 

Program (“CSSP”), Plaintiff-Appellant, JAD Contractors, LLC (“JAD”), sought 

discretionary review from the district court. The district court denied 

discretionary review. For the reasons that follow, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2018

Lyle W. Cayce

Clerk
No. 17-30167

2

I. BACKGROUND

The Claims Process

After the Spill, BP and a class of individuals reached a final E&P Settlement 

Agreement (“Agreement”) in May 2012 for those individuals and entities who 

experienced economic and property damages as a result of the Spill. The 

Agreement provides for claim resolution using various procedures, depending 

upon the type of claim and proximity to the Spill. To receive compensation, 

claimants must submit a claim to the CSSP and show that they are members 

of the class as defined by the Agreement.

Submitting a claim requires providing verified forms and documentation 

proof such as tax returns and profit/loss statements. An existing business 

seeking compensation completes a Business Economic Loss (“BEL”) form. Once 

the documents are submitted the program accountants examine the provided 

documents to calculate the award amount. The award amount represents the 

difference between the business’s actual profit during the compensable period 

and the profit it would have expected during that period had the Spill not 

occurred. 

After the CSSP makes a determination about a particular claim’s eligibility, 

either the claimant or BP may avail themselves of a multi-tiered internal 

review. After multiple levels of review, an appeal panel hears the claims de 

novo and issues “final” decisions. The district court retains the power of 

discretionary review, and if the decision is appealed, the court treats the 

panel’s decision like a magistrate judge’s report and recommendation.
No. 17-30167

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The Class

The Agreement provides: “If a person or entity is included . . . in Section 1.2, 

and their claims meet the descriptions of the Damage Categories in Section 

1.3, that entity is a member of the [Class].”1 Section 1.2 defines the class as:

All Entities doing business or operating in the Gulf Coast Areas 

. . . that: are service businesses . . . who performed their full-time 

services while physically present in the Gulf Coast Areas . . . at 

any time from April 20, 2010 to April 16, 2012 . . . .

Section 1.3 explains “[e]ntities who meet the geographical descriptions of . . . 

1.2 above are included in the Economic Class only if [they experience a l]oss of 

income, earnings or profits . . . as a result of the DEEPWATER HORIZON 

INCIDENT . . . .” 

Exhibit 4A establishes what documents a BEL class member must provide 

to be eligible for compensation. Exhibit 4B identifies class members who do not 

have to show any additional evidence of causation and specifies how other class 

members meet their causation requirements. These are the only causation 

requirements as we established in Hutto v. BP Expl. & Prod., 753 F.3d 509 (5th 

Cir. 2014). Exhibit 4C provides program accountants with the framework for 

compensation.2 Class members are only entitled to compensation for loss that 

occurred between May and December 2010. Even still, their compensation is 

calculated by subtracting actual earnings from the earnings they would have 

expected had the Spill not occurred. If a class member has no documentary 

 

1 JAD claimed to be an existing business, not a start-up or a business that failed as a 

result of the Spill. As such, this opinion only addresses the provisions and claims pertaining 

to similarly situated businesses.

2 Particularly, Exhibit 4C explains: 

The compensation framework for business claimants compares the actual 

profit of a business during a defined post-spill period in 2010 to the profit that 

the claimant might have expected to earn in the comparable post-spill period 

of 2010. . . . Compensation Period is selected by the Claimant to include three 

or more consecutive months between May and December 2010.
No. 17-30167

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support of their expected earnings, program accountants cannot calculate 

compensation.

The Claimant

On June 10, 2013, JAD, a construction company in operation since 2004, 

timely submitted a BEL claim to the CSSP for damages it incurred in Gulf 

Coast Economic Zone C. On June 10, 2015, the CSSP sent an incompleteness 

notice, asking JAD to supplement the information in JAD’s profit/loss 

statements. The same request was sent again on July 21, 2015.3 On April 04, 

2016, a Program Accountant again asked JAD to supplement the documents 

and explain the absence of revenue between January 2010 and April 2011. On 

April 12, 2016, another incompleteness notice was sent, to which JAD 

responded, on April 14, stating it was still in operation and actively seeking 

work. On May 9, 2016, the CSSP denied JAD’s claim because they were “unable 

to determine causation and/or calculate a compensation amount under the 

BEL frameworks because [JAD was] not doing business or operating in the 

Gulf Coast Areas . . . at the time of the Oil Spill, April 20, 2010.” 

JAD requested re-review. In its decision the administrator reiterated the 

previous reasoning and further explained that JAD was inactive “from 

January 2010 through April 2011 because it reported no revenues or variable 

operating expenses.” It additionally reasoned that JAD, in its tax 

reconciliation, stated it did not have revenue or expenses in 2010. Thus, JAD 

had “not provided documents indicating that the business was operating at the 

time of the Oil Spill.” 

JAD requested reconsideration. This time an administrator denied JAD’s 

reconsideration, stating: 

 

3 It is not clear from the record whether this second request was prompted because

JAD again submitted insufficient documents or no additional documents at all.
No. 17-30167

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The specific requirements for eligibility as a member of the 

Settlement Class, as laid out in Section 1.2 and Section 1.3 of the 

Settlement Agreement, have not been satisfied as the claimant has 

still not provided specific documentation indicating it was doing 

business or operating in the Gulf Coast areas . . . at the time of the 

Oil Spill, April 20, 2010.

This was the first time class eligibility was cited as a reason for the denial.

JAD appealed to the appeal panel. Reviewing de novo, the panel affirmed 

the CSSP’s original denial and did not mention class eligibility. The panel

instead held that the documents JAD presented were “simply insufficient 

evidence to support the conclusion that JAD was actively seeking jobs and 

incurring expenses between January 2010 and April 2011.” JAD then sought 

discretionary review from the district court, which summarily denied the 

claim. JAD timely appealed.

II. DISCUSSION

A. Standard of Review

We review the district court’s decision not to exercise discretionary review 

for abuse of discretion. See Steering Comm. v. BP Expl. & Prod., 785 F.3d 1003, 

1011 (5th Cir. 2015). However, when the district court is presented with a 

purely legal question of contract interpretation, the standard of review is 

effectively de novo. See id. (quoting United States v. Delgado-Nuñez, 295 F.3d 

494, 496 (5th Cir. 2002) (“[A]buse of discretion review of purely legal questions 

. . . is effectively de novo because a district court by definition abuses its 

discretion when it makes an error of law.”). Yet still, review is not mandatory, 

Lake Eugenie Land Dev., Inc. v. BP Expl. & Prod., 785 F.3d 986, 999 (5th Cir. 

2015), and we may affirm on any ground supported by the record. Moncrief Oil 

Int’l Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007).

B. Applicable Law

The district court abuses its discretion in denying review of an appeal if the 

panel substantially misapplies or misconstrues the Agreement. See Claimant 
No. 17-30167

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ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017). Even 

if the panel’s decision does not constitute a misapplication, if (1) the issue is 

regularly before the panel; (2) panels have rendered different decisions on the 

issue; and (3) the issue’s resolution will significantly impact the Agreement’s 

administration, the district court may abuse its discretion in declining review. 

See id.

C. Analysis

1. Dormancy & Award Calculation 

When parties enter into a settlement agreement, the terms of that 

agreement govern disputes arising from the agreement’s implementation. See 

Lake Eugenie, 785 F.3d at 994. According to the present Agreement, a

claimant’s class membership does not guarantee it will receive an award. Once 

a claimant clears the hurdle of class eligibility, it faces additional obstacles. 

The Agreement sets compensation calculations and requires the class member 

to provide certain documents that render program accountants able to 

calculate an award amount using the agreed upon equation. Upon receipt, the 

accountants then use those documents to determine the profit the company 

made in the years before the Spill, review the entity’s actual profit during the 

specified months, and then calculate the award amount, subtracting actual 

profits from expected profit. Using this calculation, claimants can be class 

members because they meet the class definition and still receive no 

compensation because they were inactive during the entire agreed upon 

compensable period. 

Although the period that defines the class ranges from April 20, 2010 to 

April 16, 2012, the parties agreed that the compensable period is May 2010 

through December 2010 for BEL class members. Accordingly, regardless of 

whether the panel found that JAD’s inactivity from April 2010 through April 

2011 made it ineligible for the class, program accountants could not have 
No. 17-30167

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calculated an amount to award JAD because JAD was inactive during the 

entire compensable period. 

JAD submitted its claim on June 10, 2013. The CSSP asked JAD to 

supplement the documents multiple times and gave JAD ample opportunity to 

prove that it was active during the compensable period. The CSSP eventually 

denied JAD’s claim because it was “unable to determine causation and/or

calculate a compensation amount under the BEL frameworks because [JAD 

was] not doing business or operating in the Gulf Coast Areas . . . at the time 

of the Oil Spill, April 20, 2010.” The administrator who conducted re-review 

found the same. Then the reconsideration administrator, for the first time, 

found that JAD had not satisfied the requirements for class eligibility. The 

panel, after receiving even more documents and reviewing the record de novo, 

did not address class eligibility and found instead that JAD presented 

insufficient evidence to support the company’s assertion that it actively sought 

work during the compensable period.4

This decision was correct. Although JAD sufficiently alleged that it was a 

business entity located in the Gulf Area between April 2010 and April 2012, it 

did not provide the CSSP with adequate documentation to calculate profits 

JAD expected to generate between May and December 2010, as the Agreement 

required. Program accountants asked JAD to provide documentation showing 

activity or explaining its inactivity four times between January 2009 and April 

2011. When it finally responded, JAD simply stated that it was actively 

working. At the final level of appeal, it provided additional documents in 

support of that assertion: insurance documents, a payment request, and 

invoices for office supplies. These documents were inadequate. The insurance 

 

4 JAD argued that the panel required it to be in business on the day of the Spill, April 

20, 2010. This is not supported by the record. The panel, in accord with the Agreement, asked 

JAD to show it was in business May through December 2010.
No. 17-30167

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documents represented a premium refund for insurance predating 2010 and 

illuminated that JAD was also uninsured from April 2010 through December 

2010. JAD had one policy from April 2009 through April 2010, and it renewed 

in December 2010 through December 2011. So although JAD presented the 

documents to invoke the inference that it had to be in business since it was 

insured, the documents did the opposite, showing JAD was not insured during 

the entire compensable period. The payment request was for work completed 

before April 2010, and the invoices were dated April 2011, after the 

compensation period. All of these documents further supported that JAD was 

inactive during the compensation period, and they did not provide the program 

accountants with the ability to calculate the profits JAD expected May through 

December 2010. 

Panels consistently deny claims where the entity shows no revenue or 

expenses for that period and also presents no documentation evidencing an 

ardent attempt to find work. In 37 APD 2017-370 (Mar. 23, 2017), the panel

upheld a commercial real estate lessor’s claim denial because the property

went without a tenant, no revenue, and minimum expenses. When asked to 

provide documentation to assist the program accountant in calculating an 

award amount, the claimant presented insufficient evidence that it was 

actively seeking a tenant during the compensable period. The panel decided 

similarly in 23 APD 2015-186 (Nov. 20, 2016), when it upheld the denial of a 

window cleaning business’s claim where the business was inactive during the

entire compensable period.

Furthermore, panels consistently reverse denials when BEL claimants 

demonstrate they actively sought work. Although the commercial real estate 

lessor in 25 APD 2016-128 (Feb. 24, 2016) had no revenue or expenses from 

February 2010 through April 2011, the panel reversed the denial because the 

owner showed that it was actively seeking business during the compensable 
No. 17-30167

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period. The same was done in multiple other claims. See 26 APD 2016-279 

(Apr. 4, 2016) (reversed denial because inactivity from January 2009 through 

August 2010 did not preclude entity from class membership, it only negatively 

affected the award amount); 39 APD 2017-742 (2017) (reversed denial of real 

estate agent’s claim even though it had no revenue and expenses for a period 

of time because it showed that the nature of its work was sporadic). JAD made 

no attempt to provide similar support, and the documents it offered further 

supported the panel’s decision. Class members who do not provide any 

documentation explaining their inactivity during the compensable period are 

consistently denied. Therefore, the panel did not misapply the Agreement in 

denying JAD’s claim, and the district court did not abuse its discretion.

2. Class Membership

Foregoing argument that the CSSP misapplied the Agreement by holding 

that it was unable to calculate an award, JAD instead offered the same 

argument as BP. Both BP and JAD aver that the panel found that JAD was 

not entitled to compensation because it experienced a period of inactivity and, 

thus, was not a class member. JAD argues that this was an errant decision. BP 

argues that this was the right one. The panel found that JAD was not entitled 

to compensation as a result of its inactivity; however, the panel’s “why” 

surrounded the compensation calculation, not class membership. 

As previously contested by BP, traceability is again challenged here. See

Hutto, 753 F.3d at 512–13. In order for an individual to have standing to bring 

a case, there must be, inter alia, a causal connection between a plaintiff’s injury 

and a defendant’s conduct. See id. at 513. In Hutto, we held that in class action 

claims, individuals who meet the class definition maintain traceability and are 

class members. Id. at 512–13 (citing Lujan v. Defenders of Wildlife, 504 U.S. 

555, 561 (1992)). The class action claimants simply have to allege causation to 
No. 17-30167

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satisfy Article III traceability. See id. (“Allegations of causation are sufficient 

to satisfy Article III in a class action complaint and in class action definition.”). 

The panel did not misapply or misconstrue the Agreement in determining 

JAD’s class status. Contrary to the parties’ beliefs,5 the panel did not conclude 

that JAD was ineligible for the class. A claimant seeking class membership 

must only allege that the defendant caused its injury. Id. at 513. The parties 

agreed that a class member is one who meets the requirements of section 1 of 

the Agreement. Section 1.2 of the Agreement’s plain language says any entity 

operating in the Gulf area at any time from April 20, 2010 through April 16, 

2012 is a class member6 if they experience a loss defined in section 1.3. Section 

1.3 of the Agreement further defines class members as those individuals or 

entities defined in section 1.2 who experienced a loss as a result of the spill.7

As established in Hutto, claimants simply have to allege that they are 

members of the class. Id. at 512–13. Here, that allegation is made in the 

parties’ agreed-upon claimant form, which requires claimants to certify they 

meet the class definition under penalty of perjury. JAD completed and signed 

the forms and thus sufficiently alleged that it was a class member. 

The parties’ misunderstanding is not without merit. Instead of conducting 

the analysis piece-by-piece and determining class membership separately from 

award calculation, the administrator simply gives the reasoning as to why a 

 

5JAD makes an argument similar to the one previously made by BP: the class 

administrator was supposed to use Exhibit 4B to find a causal nexus and approve its claim. 

This argument fails. We have already held Exhibit 4B causation requirements do not affect 

class membership. Hutto, 753 F.3d at 513. (“Exhibit 4B . . . [is an] evidentiary framework[] 

that [has] no effect on the claimants’ allegations or on the class definition.”). Neither do 

Exhibit 4C requirements.

6 JAD easily clears the Section 1.2 hurdle. Although there was some time of inactivity, 

the parties concede that JAD was operating a business by April 2011 and continues to 

operate. Thus, JAD operated in the Gulf area between April 20, 2010 and April 16, 2012.

7 JAD also alleged economic loss, during that time and as a result of the Spill, meeting 

the Section 1.3 requirements. Therefore, JAD is a class member as defined by the Agreement.
No. 17-30167

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claimant would not receive an award. The initial review administrator, the rereview administrator, and the final review panel did not reason that JAD’s lack 

of activity precluded it from the class.8 Instead the panel stated it could not 

calculate an award because of the lack of activity during the compensable 

period.

Despite BP’s familiar argument,9 JAD’s alleged temporary dormancy does 

not affect its class status. Beyond the established rule that we must “assume 

arguendo the elements of [each claimant’s] legal claim,” Cole v. Gen. Motors 

Corp., 484 F.3d 717, 723 (5th Cir. 2007), the required claim form that a 

claimant must complete and submit is signed under the penalty of perjury, 

further establishing that allegations are sufficient. Furthermore, this 

argument ignores precedent and attempts to set a higher burden for class 

action claimants in blatant disregard of that same precedent. Hutto, 753 F.3d 

at 512–13. 

Accepting JAD’s class membership but otherwise denying the claim is in 

line with other panel decisions. In fact, the panel has explicitly stated that 

dormancy has no effect on class membership. In 26 APD 2016-279 (Apr. 4, 

 

8 The administrator who conducted the reconsideration did find that JAD was not a 

member of the class because of the period of inactivity. However, it does not necessarily follow 

that the panel affirmed for these reasons. The panel conducts a de novo review and makes 

its own determination. In its decision, the panel did not repeat the language the 

reconsideration administrator used. It did not mention class eligibility or causation. If the 

panel followed the reasoning of the reconsideration administrator, this was likely error and 

a misinterpretation of the Agreement that should have been reviewed by the district court. 

That methodology goes directly against precedent set by this Court and heightens Article III 

standing requirements. See Hutto, 753 F.3d at 512. However, this is likely not the 

methodology the CSSP undertook because again, only one of the four review panels said that 

JAD was ineligible to be a part of the class because of its dormancy.

9 In 2014 BP attempted to argue that if the panel did not ensure that a claim contained 

a direct causal nexus, its constitutional and contractual rights would be violated. Hutto, 753 

F.3d at 512–13. Now it argues that here the panel conducted this causal calculation that this 

court held was inaccurate and ruled in its favor as a result. We again disagree. If the panel 

acted as BP avers, it committed substantial error reviewable by the district court. 
No. 17-30167

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2016), the panel reversed an administrator’s decision to deny the claim of a 

commercial real estate lessor, who generated no revenues or expenses from 

January 2009 through August 2010. The initial reviewer determined that this 

time of inactivity made the business ineligible for class membership. The panel 

directly addressed this error saying: 

The fact that the property was not leased from January 2009 

through August 2010 is of no real importance as to whether the 

Claimant is a member of the class. It most certainly is. The issue 

which appears to stump the Vendor Accountants was the amount 

of the award.

26 APD 2016-279. Thus, the CSSP has already found that dormancy does not 

affect class status but only the calculation of the award. 

Because JAD’s allegations of class membership are sufficient, JAD is a class 

member. Despite the period of inactivity, the parties concede that JAD 

provided documentation demonstrating it was operating by April 2011 and 

continues to operate. So JAD meets section 1.2 requirements. JAD also alleged 

economic loss as a result of the Spill, meeting the Section 1.3 requirements. 

Therefore, the CSSP likely did not misapply or misconstrue the agreement 

because it did not decide that JAD’s inactivity precluded it from the class. It 

instead found that JAD was a class member, who did not provide sufficient 

documentation for the Program Accountant to calculate an award.10

III. CONCLUSION 

The district court’s judgment is AFFIRMED.

 

10 Although there was likely no misapplication of the Agreement, this is likely a 

question of law that can potentially substantially impact Agreement administration if the 

CSSP precludes dormant individuals from the class, instead of considering them class 

members presenting noncompensable claims.