IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 13-30315

___________________

IN RE: DEEPWATER HORIZON 

--------------------------------------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON 

SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY, 

INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA 

CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER 

FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD 

LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on 

behalf of themselves and all others similarly situated; HENRY HUTTO; 

BRAD FRILOUX; JERRY J. KEE, 

 Plaintiffs - Appellees

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY; BP PIPE LINE COMPANY, 

 Defendants - Appellants

-----------------------------------------------------------------------------

Consolidated with: 13-30329

IN RE: DEEPWATER HORIZON

--------------------------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON 

SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY, 

INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA 

CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER 

FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD 

LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on 

United States Court of Appeals

Fifth Circuit

FILED

May 19, 2014

Lyle W. Cayce

Clerk
No. 13-30315

behalf of themselves and all others similarly situated; HENRY HUTTO; 

BRAD FRILOUX; JERRY J. KEE, 

 Plaintiffs - Appellees 

v. 

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

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

 Defendants - Appellants

-------------------------------------------------------------------- 

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY

 Plaintiffs - Appellants

v.

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON 

SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY, 

INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA 

CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER 

FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD 

LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on 

behalf of themselves and all others similarly situated; HENRY HUTTO; 

BRAD FRILOUX; JERRY J. KEE, 

 Intervenor Defendants - Appellees

DEEPWATER HORIZON COURT SUPERVISED SETTLEMENT 

PROGRAM; PATRICK A. JUNEAU, in his official capacity as Claims 

Administrator of the Deepwater Horizon Court Supervised Settlement 

Program administering the Deepwater Horizon Economic and Property 

Damages Settlement Agreement, and in his official capacity as Trustee of the 

Deepwater

 Defendants - Appellees

2
No. 13-30315

--------------------------------------------------------------------------------------------------

Consolidated with 13-31220

IN RE: DEEPWATER HORIZON

--------------------------------------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON 

SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY, 

INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA 

CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER 

FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD 

LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on 

behalf of themselves and all others similarly situated; HENRY HUTTO; 

BRAD FRILOUX; JERRY J. KEE, 

 Plaintiffs - Appellees

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY; BP PIPE LINE COMPANY, 

 Defendants - Appellants

-------------------------------------------------------------------------------------------------

Consolidated with 13-31316

IN RE: DEEPWATER HORIZON

------------------------------------------------------

LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON 

SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY, 

INCORPORATED; LFBP 1, L.L.C., doing business as GW Fins; PANAMA 

CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES CHARTER 

FLEET, L.L.C.; WILLIAM SELLERS; KATHLEEN IRWIN; RONALD 

LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL GUIDRY, on 

behalf of themselves and all others similarly situated; HENRY HUTTO; 

BRAD FRILOUX; JERRY J. KEE, 

 Plaintiffs - Appellees

3
No. 13-30315

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

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

 Defendants - Appellants

_______________________

Appeals from the United States District Court 

for the Eastern District of Louisiana

__________________

ON PETITION FOR REHEARING EN BANC

(Opinions 732 F.3d 326; 744 F.3d 370)

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.

ORDER:

The court having been polled at the request of one of its members, and a

majority of the judges who are in regular active service and not disqualified 

not having voted in favor (FED. R. APP. P.35 and 5TH CIR. R. 35), the Petition 

for Rehearing En Banc is DENIED.∗

In the en banc poll, five judges voted in favor of rehearing (Judges Jolly, 

Jones, Clement, Owen, and Elrod) and eight judges voted against (Chief Judge 

Stewart and Judges Davis, Dennis, Prado, Southwick, Haynes, Graves, and 

Higginson).

ENTERED FOR THE COURT:

 /s/ Leslie H. Southwick 

Leslie H. Southwick

United States Circuit Judge

∗ Judge Smith is recused and did not participate in the consideration of the petition for 

rehearing en banc.

4

 
No. 13-30315

EDITH BROWN CLEMENT, Circuit Judge, dissenting from Denial of 

Rehearing En Banc, joined by JOLLY and JONES, Circuit Judges:1

This court’s denial of the petition for rehearing the Business Economic 

Loss panel decision en banc misses the last opportunity for this court to clarify 

its prior Deepwater Horizon decisions and to enforce a proper application of 

standing and causation. The panel opinion conflicts with prior precedent, and 

“the proceeding involves . . . questions of exceptional importance.” Fed. R. App. 

P. 35(b)(1). En banc rehearing should have been granted. We respectfully 

dissent.

I

While this court may convert a petition for rehearing en banc into a petition 

for panel rehearing, the approach is typically reserved to grant some requested 

relief to the petitioner. See In re Scopac, 649 F.3d 320 (5th Cir. 2011). Judge 

Southwick’s new order essentially serves as a second opportunity to 

extrapolate on his rejection of BP’s position, apparently in an attempt to 

coalesce the reasoning between his and Judge Dennis’s prior opinions in our 

latest take on this tortuous case. See In re Deepwater Horizon, No. 13-30315, 

2014 WL 841313 (5th Cir. Mar. 3, 2014) (“Deepwater Horizon III”). The new 

order does not withdraw the panel’s opinion or provide different legal analysis, 

it merely adds additional discussion. This discussion is not responsive to any 

motions filed by BP and does not change any holding from the prior panel 

opinion. It also has no effect on the related panel opinion in 13-30095. The 

failure to consolidate these cases has led to continued confusion in appeals that 

are inextricably intertwined and related.

1 Judge Garza would join this dissent if he had been able to vote as an active member of the 

en banc panel.

5

 
No. 13-30315

II

This court’s decisions thus far have suffered from divided reasoning and 

a complete refusal to address the critical decision of the district court. Our 

first decision remanded to the district court to address the issue of matching of 

revenues and expenses and for consideration of “the issue of causation.” In re 

Deepwater Horizon, 732 F.3d 326, 347 (5th Cir. 2013) (“Deepwater Horizon I”) 

(Southwick, J., concurring). On remand, the district court addressed the 

matching issue but not causation. Order at 1, In re Oil Spill by Oil Rig 

Deepwater Horizon in Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. 

La. Oct. 3, 2013). BP appealed this refusal to address causation on November 

21, 2013.

On December 2, 2013, we held that the district court erred by not 

considering arguments on causation. The district court proceeded to address 

those arguments and released an order on December 24, 2013. Order, In re Oil 

Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, MDL 

No. 2179 (E.D. La. Dec. 24, 2013). In that order, the district court held “that 

judicial estoppel bars BP from advancing its current interpretation of the 

Settlement Agreement.” Id. at 12. The lower court, broadly and 

unambiguously, found that BP’s prior statements barred it from raising any 

arguments concerning causation, or even “similar arguments.”2

2 The district court held,

that BP is judicially estopped from arguing (1) that Exhibit 4B is not the 

exclusive means of determining whether a business economic loss is “as a 

result of’” of [sic] the Deepwater Horizon incident for purposes of the 

Settlement, including the Class Definition; (2) or that the Settlement 

contains, implicitly or explicitly, a causation requirement other than Exhibit 

4B; (3) or that satisfying Exhibit 4B does not establish under the Settlement 

an irrebuttable presumption that a business’ economic loss was “as a result 

of” the Deepwater Horizon Incident; (4) or making similar arguments. As a 

corollary to this ruling, the Court finds that whether a business economic loss 

is “as a result of” the Deepwater Horizon Incident for purposes of the 

6

 
No. 13-30315

Over my objection, the panel declined to come to a definitive ruling on 

this critical issue. See Deepwater Horizon III. Instead, Judge Southwick’s 

opinion relied on an attestation form that the lower court never discussed or 

addressed in the entirety of its 43-page order. But this analysis was never 

explicitly agreed to by Judge Dennis, whose concurrence described the 

procedural history and then essentially concurred in the judgment only.3 

While by implication Judge Southwick’s consideration of the merits of BP’s 

arguments signified a rejection of the judicial estoppel ruling, Judge Dennis 

apparently wanted to affirm the district court’s ruling on estoppel alone. 

Reading the published opinions together with the district court’s orders, it was 

clear that no two judges agreed on any legal basis for affirming. Because there 

was no definitive ruling on judicial estoppel in the panel opinion there was 

clear legal error that it was the duty of this court en banc to address. After a 

close vote, this court declined to do so.

Judge Southwick now submits yet another revised order, styled a denial 

of a petition for panel rehearing. This apparent attempt to meld the reasoning 

Settlement is determined exclusively and conclusively by Exhibit 4B. 

Id. at 18.

3 The operative portion of Judge Dennis’s concurrence reads,

Although I continue to adhere to the views I expressed previously in this 

case, I now join Judge Southwick in affirming the district court's December 

24, 2013 order interpreting the settlement agreement as written and 

declining to add, by judicial gloss, any additional requirements, procedures, 

or other provisions not contained in the text of the settlement agreement and 

consent decree and its attached exhibits. I agree with Judge Southwick that 

BP’s renewed motion for an injunction should be denied and that no 

injunction against the payment of business-economic-loss claims shall 

continue. I also agree that we are bound by the certification panel's Article 

III, Rule 23, and Rules Enabling Act rulings in its January 10, 2014 opinion 

and decision. Accordingly, for these reasons, I concur in the above described 

conclusions reached by Judge Southwick and in the judgment he has written 

for the majority of this panel.

Id. at *8.

7

 
No. 13-30315

between his and Judge Dennis’s prior opinions is too little too late and leaves 

the essential results unchanged: the class of people who will recover from this 

settlement continues to include significant numbers of people whose losses, if 

any, were not caused by BP. Our court’s decisions would allow payments to 

“victims” such as a wireless phone company store that burned down and a RV 

park owner that was foreclosed on before the spill.4 Left intact, our holdings 

funnel BP’s cash into the pockets of undeserving non-victims.

These are certainly absurd results. And despite our colleagues’ continued 

efforts to shift the blame for these absurdities to BP’s lawyers, it remains the 

fact that we are party to this fraud by (1) adopting an unreasonable 

interpretation of the Settlement Agreement to remove any requirement of 

causation, and (2) certifying a class by ignoring the fact that although 

causation and traceability were initially written into the Settlement 

Agreement, the Claim’s Administrator’s interpretation governing what would 

actually happen meant that Article III requirements would be ignored in the 

class settlement’s execution. 5

 The dissent to the denial of panel rehearing for 

the certification panel, 13-30095, explains in greater detail this elimination of 

causation.

The judicial power extends only to actual cases and controversies even 

in a class action and even in a settlement. Lewis v. Casey, 518 U.S. 343, 349 

4 60 Minutes: BP cries foul in massive oil spill settlement (CBS television broadcast May 4, 

2014) available at http://www.cbsnews.com/videos/bp-cries-foul-in-massive-oil-spillsettlement/.

5 However, Judge Southwick’s order “conclude[s] that causation is never abandoned as a 

requirement” and BP is thus implicitly not judicially estopped from continuing to argue 

causation in the district court, or to the Claims Administrator, for the settlement globally or 

against individual fraudulent claims. As I read this latest opinion, BP may seek recovery 

for losses due to fraud in individual actions, and government prosecutors may pursue those 

who submit fraudulent claims. Although not as protective as making clear that the Claims 

Administrator should not pay claims that were not “a result of” the Deepwater Horizon 

spill, a majority of the en banc court apparently seems to believe that those protections are 

still in place.

8

 
No. 13-30315

(1996). Judge Southwick’s analogy to a stipulation supports an argument for 

judicial scrutiny, not judicial abdication. Even with the assent of all parties, 

judges still have the obligation to reject stipulations that are not factually true. 

See People v. Marling, 172 Cal. Rptr. 109 (Ct. App. 1981) (“Although a rose is 

a rose, a cactus is not and a stipulation does not make it so.”) They may also 

do so because the parties cannot stipulate to law: they cannot force a court 

through stipulation “to decide a case according to a body of law that is nowhere 

in force.” Cent’l Soya Co. Inc. v. Epstein Fisheries, Inc., 676 F.2d 939, 941 (7th 

Cir. 1982) (Posner, J.); see also Reeg v. Shaughnessy, 570 F.2d 309, 314 (10th 

Cir. 1978) (“It is settled that parties cannot stipulate that the law of a forum 

will not control, but that other law will control.”) This purported stipulation 

has ended up being either factually or legally untrue. It either trumpets one 

lie (businesses operating hundreds of miles from any sign of befouled water 

had injury “caused by” BP) or another (a party can stipulate away the legal 

requirement of causation). But parties cannot stipulate to force courts to 

decide cases based on “a body of law that is nowhere in force” or to declare a 

cactus a rose. There are limits on party autonomy and judicial efficiency, 

because a stipulation, like any other judicially enforced agreement, derives its 

force from the power of the court and its enforcement should not “discredit the 

judiciary.” Charles Alan Wright and Kenneth W. Graham, Fed. Prac. & Proc. 

Evid. § 5194.

III

“The party invoking federal jurisdiction bears the burden of establishing 

[the elements of standing] . . . with the manner and degree of evidence required 

at the successive stages of litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 

555, 561 (1992). While in the certification of a class action that will proceed to 

trial a lesser inquiry into standing may be required, Kohen v. Pacific 

9
No. 13-30315

Investment Management Co., 571 F.3d 672 (7th Cir. 2009), in a settlement class 

such as this one, the standing inquiry must take into account the fact that 

inclusion in the class means recovery. Denney v. Deutsche Bank AG, 443 F.3d 

253, 264 (2d Cir. 2006) (“[N]o class may be certified that contains members 

lacking Article III standing. The class must therefore be defined in such a way 

that anyone within it would have standing”). While the Kohen approach to 

standing has been used in the Seventh, Ninth, and Third Circuits, other cases 

in the Eighth, Seventh, and Ninth have assessed cases under the Denney

formulation. In re Deepwater Horizon, 739 F.3d 790, 800-01 (5th Cir. 2014) 

(“Deepwater Horizon II”). These different approaches, sometimes used by the 

same circuit, reveal the deep confusion in this area of class action standing. 

While our en banc court had the opportunity to address and clarify this issue 

for our circuit, confused as it was by two separate panel opinions on one 

essential, constitutional issue, it has declined to do so. Admittedly, even this 

articulation would not have been enough for our sister circuits considering the 

deep split on this issue. Another court surely must resolve this.

We respectfully dissent.

10