IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20028

KENNETH W. ABBOTT; FOOD & WATER WATCH, INCORPORATED, 

 Plaintiffs - Appellants 

v. 

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA, 

INCORPORATED; BP P.L.C.; BP PRODUCTS NORTH AMERICA, 

INCORPORATED, 

 Defendants - Appellees 

Appeal from the United States District Court

for the Southern District of Texas 

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges. 

HAYNES, Circuit Judge:

Plaintiffs Kenneth Abbott and Food & Water Watch, Incorporated appeal 

the district court’s grant of summary judgment on all claims in favor of 

Defendants BP Exploration & Production, Inc., BP America, Inc., BP p.l.c., and 

BP Products North America Inc. (collectively, “BP”). We AFFIRM. 

I. Background 

This appeal centers on the regulatory process through which BP built 

and maintained the Atlantis Platform, a semi-submersible floating oil 

production facility located in the Gulf of Mexico. Plaintiff Keith Abbott worked 

for BP in the Atlantis administrative offices from August 2008 to February 

United States Court of Appeals

Fifth Circuit

FILED

March 14, 2017

Lyle W. Cayce

Clerk

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2 

2009. During his employment, Abbott came to believe that BP did not have all 

of the necessary documentation for the Atlantis and that many of the Atlantis 

documents that BP did have were not approved by engineers as required by 

applicable regulations. 

On or about April 9, 2009, Abbott filed a written submission to the 

United States Attorney General and the United States Attorney for the 

Southern District of Texas detailing his concerns with BP’s Atlantis 

documentation. Abbott subsequently filed, under seal, a complaint pursuant 

to 31 U.S.C. § 3730(b)(2) of the False Claims Act (“FCA”) on April 21, 2009, 

claiming, inter alia, that BP falsely certified compliance with various 

regulatory requirements. As a result of his lawsuit, the Department of the 

Interior (“DOI”) began reviewing BP’s compliance with those regulatory 

requirements in May 2009. DOI also received inquiries from members of 

Congress about the Atlantis in the wake of testimony, including that of Abbott, 

before the Natural Resources Subcommittee on National Parks, Forests, and 

Public Lands in June 2009. By March 2010, DOI indicated to Congress that 

DOI would conduct a full investigation. 

On September 10, 2010, while the DOI was investigating the Atlantis, 

Abbott amended his complaint to both add Food & Water Watch, Incorporated 

as a plaintiff and include additional claims for violations of the Outer 

Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq. The amended 

complaint contained a section titled “Publicly Available Information,” in which 

Abbott included new evidence concerning the specific language of the 

certifications made by BP, pursuant to 30 C.F.R. §§ 250.802(e)(5) (2005) and 

250.901(d) (2002), to the DOI. BP filed a motion to dismiss in response to this 

amended complaint, to which the United States of America (“Government”) 

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filed a statement of interest that took no position on the validity or sufficiency 

of Plaintiffs’ amended complaint.1 

DOI’s investigation culminated in a 2011 report (“DOI Report”) that 

concluded that “Abbott’s allegations that Atlantis operations personnel lacked 

access to critical, engineer-approved drawings are without merit,” and that 

“Abbott’s allegations about false submissions by BP to [DOI] are unfounded.” 

The DOI Report also “found no grounds for suspending the operations of the 

Atlantis . . . or revoking BP’s designation as an operator . . . .” 

Shortly after the DOI issued its report, the district court denied BP’s 

motion to dismiss. During discovery, Food & Water Watch, Incorporated 

identified three donors whom they alleged could be injured by an oil spill due 

to the allegedly false Atlantis certifications. These donors were Allen Estay, a 

shrimp business operator located off the Gulf in Louisiana, Nancy James, a 

resident along the Gulf in Florida, and Donna Boland, a California resident 

who owns a rental property near the Gulf in Texas. Abbott also stated that he 

regularly visited the Gulf, and would be damaged if an oil spill resulted from 

the allegedly incorrect certifications. Following discovery, the parties filed 

motions for summary judgment. The district court ultimately granted 

summary judgment in favor of BP on all claims. This appeal followed. 

II. Standard of Review 

Motions for summary judgment are reviewed de novo. United States ex 

rel. Babalola v. Sharma, 746 F.3d 157, 160 (5th Cir.), cert. denied, 134 S. Ct. 

2856 (2014). “The court shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). We view the 

 

1 The Government instead disputed two arguments raised by BP in their motion to 

dismiss.

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evidence on the record “in the light most favorable to the non-moving party.” 

United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011) (citing 

United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006)). 

III. Discussion 

In order to survive BP’s motion for summary judgment, Plaintiffs must 

create a dispute of material fact as to the following four elements of an FCA 

claim: “(1) whether there was a false statement or fraudulent course of 

conduct; (2) made or carried out with the requisite scienter; (3) that was 

material; and (4) that caused the government to pay out money or to forfeit 

moneys due (i.e., that involved a claim).” United States ex rel. Longhi v. United 

States, 575 F.3d 458, 467 (5th Cir. 2009) (citation omitted).2 “The term 

‘material’ means having a natural tendency to influence, or be capable of 

influencing, the payment or receipt of money or property.” Universal Health 

Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2002 (2016) 

(quoting 31 U.S.C. § 3729(b)(4)) (citing Neder v. United States, 527 U.S. 1, 16 

(1997) and Kungys v. United States, 485 U.S. 759, 770 (1988)).

 

2 BP also moved for summary judgment on the basis that the court lacked subject 

matter jurisdiction over Plaintiffs’ amended complaint due to the FCA public disclosure bar. 

31 U.S.C. § 3730(e)(4)(A). But by the time Plaintiffs amended their complaint and BP moved 

for summary judgment on this ground, the language of the public disclosure bar had been 

changed by the Patient Protection and Affordable Care Act (“ACA”). While we have not 

analyzed whether the ACA-changed language alters the jurisdictional nature of the public 

disclosure bar, a number of our sister circuits have determined that the new language 

inserted by the ACA no longer presents a jurisdictional bar. See United States ex rel. Moore 

& Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d Cir. 2016) (“[W]e conclude 

that the amended bar is not jurisdictional.”); United States ex rel. Osheroff v. Humana, Inc., 

776 F.3d 805, 810 (11th Cir. 2015) (“We conclude that the amended § 3730(e)(4) creates 

grounds for dismissal for failure to state a claim rather than for lack of jurisdiction.”); United 

States ex rel. May v. Purdue Pharm. L.P., 737 F.3d 908, 916 (4th Cir. 2013) (“It is apparent, 

however, that the public-disclosure bar is no longer jurisdictional.”). We agree with our sister 

circuits that the public disclosure bar is no longer jurisdictional. We are thus not required to 

first address this argument by BP, as it has no effect on our jurisdiction to entertain other, 

more persuasive arguments.

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Plaintiffs take issue with multiple facets of the district court’s grant of 

summary judgment. We address each in turn. 

As recently discussed by the Supreme Court in Escobar, “[t]he 

materiality standard is demanding.” Id. at 2003. It debunked the notion that 

a Governmental designation of compliance as a condition of payment by itself 

is sufficient to prove materiality. Id. Further, the Court concluded that it is 

not “sufficient for a finding of materiality that the Government would have the 

option to decline to pay if it knew of the defendant’s noncompliance.” Id. In 

summarizing the determination of materiality, the Supreme Court offered the 

following insight: 

[I]f the Government pays a particular claim in full 

despite its actual knowledge that certain 

requirements were violated, that is very strong 

evidence that those requirements are not material. 

Or, if the Government regularly pays a particular type 

of claim in full despite actual knowledge that certain 

requirements were violated, and has signaled no 

change in position, that is strong evidence that the 

requirements are not material. 

Id. at 2003–04.

Plaintiffs’ FCA claims center on whether engineers approved the various 

stages of construction of the Atlantis. In arguing that fact issues exist, 

Plaintiffs point to missing stamps, drawings not specifically marked as “AsBuilt,” BP internal procedures requiring “As-Built” markings, and testimony 

from a DOI official stating that the Atlantis would not have been approved had 

BP not certified its compliance with various regulations. These facts, however, 

do not create an issue of fact as to materiality given the particular 

circumstances of Plaintiffs’ case. Rarely does the pursuit of an individual’s 

FCA claims lead to an investigation requested by Congress. But that is the 

case with these Plaintiffs, whose insistence on the alleged issues with the 

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Atlantis led to Congressional hearings, an investigation by a federal agency, 

and the DOI Report. The DOI Report considered many of the same arguments 

advanced before us now by Plaintiffs and nonetheless found that the Atlantis 

was in compliance with those regulations relating to certification. The DOI 

Report also found no grounds to suspend the operation of the Atlantis or revoke 

BP’s designation as an operator. 

As recognized in Escobar, when the DOI decided to allow the Atlantis to 

continue drilling after a substantial investigation into Plaintiffs’ allegations, 

that decision represents “strong evidence” that the requirements in those 

regulations are not material. Id. These “strong facts” have not been rebutted 

by Plaintiffs’ evidence such that Plaintiffs have failed to create a genuine 

dispute of material fact as to materiality. The district court therefore correctly 

granted summary judgment on the FCA claims in favor of BP. 

Turning to Plaintiffs’ OCSLA claims, we agree with the district court 

that Plaintiffs lack standing to pursue these claims. In order to survive 

summary judgment, Plaintiffs must demonstrate (1) an injury in fact that is 

concrete and actual or imminent; (2) a causal connection between the injury 

and the challenged action of the defendant; and (3) a likelihood that the injury 

would be redressed by a favorable judicial decision. United States v. Johnson, 

632 F.3d 912, 919 (5th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560–61 (1992)). Implicit in the first requirement of Article III 

standing is the notion that the injury in fact is particularized to the Plaintiffs. 

Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citing Lujan, 504 U.S. at 

560 n.1). “Particularization is necessary to establish injury in fact” and 

requires Plaintiffs to demonstrate that their injury “affect[s] the plaintiff[s] in 

a personal and individual way.” Id. (citation omitted); see also Pub. Citizen, 

Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1292 (D.C. Cir. 

2007) (“The Supreme Court also has stated that the asserted injury must be 

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particularized—which the Court has also described as personal, individual, 

distinct, and differentiated—not generalized or undifferentiated.” (citations 

omitted)). 

Here, Plaintiffs have failed to plead individualized injuries. Their 

injuries instead appear to be generalized and undifferentiated. These alleged

injuries could occur to anyone who uses the Gulf regularly, works near the 

Gulf, or lives or owns property near the Gulf, i.e., millions of people. We hold, 

consistent with the district court, that Plaintiffs’ injuries are not sufficiently 

particularized to support Article III standing. See Spokeo, 136 S. Ct. at 1548; 

see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006) (“Standing 

has been rejected in such cases because the alleged injury is not concrete and 

particularized, but instead [an injury plaintiff] suffers in some indefinite way 

in common with people generally.” (citations omitted)). 

For the reasons discussed above, we AFFIRM. 

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