IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31087

CLAIMANT ID 100128765, 

 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-13934

Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

This appeal involves a claim under the Deepwater Horizon Economic and 

Property Damages Settlement. Bickford Appraisal Group is a real-estateappraisal company located in Hammond, Louisiana. As a zone D claimant 

under the Settlement, Bickford was required to show causation in order to 

recover losses. Bickford attempted to show causation by submitting published 

 

* 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

September 27, 2017

Lyle W. Cayce

Clerk

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articles discussing the effect on the real-estate-appraisal industry of the 

financial reforms that resulted from the Dodd-Frank Act. The claims 

administrator denied Bickford’s claim for failure to show causation. The 

appeal panel upheld the claims administrator’s decision because Bickford

failed to provide objective third-party documentation. The district court then 

denied discretionary review. We AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND

The Deepwater Horizon oil spill and the resulting class-action settlement 

are no strangers to this court. See, e.g., In re Deepwater Horizon, 785 F.3d 

1003, 1008–09 (5th Cir. 2015) (discussing the background of appeals arising 

out of the class-action settlement). Hence, we discuss only the facts necessary 

for the resolution of this appeal. 

Appellant Bickford Appraisal Group is a real-estate-appraisal company 

located in Hammond, Louisiana. Bickford filed a “Business Economic Loss” 

claim under the Deepwater Horizon Economic and Property Damages 

Settlement Agreement (the “Settlement”). The Settlement divides various 

geographic regions in the Gulf of Mexico into four economic loss zones: A, B, C, 

and D. It is undisputed that Bickford is a zone D claimant. 

In order to recover for losses pursuant to the Settlement, a zone D 

claimant is required to establish causation through one of various tests. Those 

tests are set out in Section III of Exhibit 4B of the Settlement. In a hearing 

before the claims administrator, Bickford sought to establish causation 

pursuant to the “Decline Only” test. That Exhibit set out three subparts to the 

test, summarized in Policy Statement 474 in this abbreviated way:

1. The first prong of this test examines the decline in 

percentage of revenue over three consecutive post-Spill months in 

2010 compared to the same months in the Benchmark Period.

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2. The second prong requires the claimant to provide specific 

documentation that identifies factors outside the control of the 

claimant that prevented the recovery of revenues in 2011.

3. The third prong examines the decline in the share of total 

revenue generated by certain customers over the same period of 

three consecutive post-Spill months in 2010 as used in the first 

prong . . . compared to the same three consecutive month period in 

2009. The Settlement Program refers to this analysis as the 

Customer Mix Test.

Relevant for this appeal, the second prong lists six factors, at least one of which 

much be supported by documentation: 

Specific documentation identifying factors outside the control of 

claimant that prevented the recovery of revenues in 2011: 

• The entry of a competitor in 2011

• Bankruptcy of a significant customer in 2011

• Nearby road closures affecting the business

• Unanticipated interruption resulting in closure of the 

business

• Produce/Source replacement by Customer,

• Loss of financing and/or reasonable terms of renewal[.] 

In an attempt to satisfy the second prong, Bickford submitted two 

articles from an appraisal trade publication. Bickford alleged that these 

articles explained that appraisal companies struggled in 2011 after the 2010 

passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

According to Bickford, Dodd-Frank required lenders to go through 

appraisal management companies to bid out appraisals, while before the 

enactment, lenders could contract directly with appraisal companies to request 

appraisals. Bickford contends that the new requirements had the effect of 

driving down an appraiser’s revenues.

The claims administrator denied Bickford’s claim, summarizing the 

reasons this way: “You have not provided documents sufficient to establish that 

your lost revenue occurred as a result of the Spill, in accordance with Exhibit 

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4B of the Settlement Agreement.” Bickford sought reconsideration, but the 

request was denied.

The appeal panel then upheld the denial of Bickford’s claim. The appeal 

panel interpreted the specific documentation requirement in Section III.C as 

necessitating objective third-party documentation. The appeal panel 

concluded that the articles and the information within the articles were not 

objective. Bickford then sought discretionary review from the district court. 

The district court denied review.

DISCUSSION

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

discretion. Deepwater Horizon, 785 F.3d at 1011. Interpretation of the 

Settlement itself, however, “is a question of contract law that this Court 

reviews de novo.” Id. The district court can abuse its discretion in at least two 

circumstances: when “the decision not reviewed by the district court [1] 

actually contradicted or misapplied the Settlement Agreement, or [2] had the 

clear potential to contradict or misapply the Settlement Agreement.” Holmes 

Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016). We 

also agree with a point made in an unpublished opinion, that one factor to 

consider in deciding whether the district court abused its discretion is whether 

the issue has divided the appeal panels. See Claimant Id 100226366 v. BP 

Expl. & Prod., Inc., 671 F. App’x 940, 941 (5th Cir. 2016). 

Bickford argues that the district court abused its discretion by leaving in 

place a split with another appeal panel that considered an identically situated 

claimant and by not correcting a legally incorrect definition of what it means 

for documentation to be “objective.”

Bickford’s argument about a split between appeal panels relies on a 

ruling by an appeal panel that addressed a different claim. The prior panel 

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concluded that the same published articles Bickford submitted here were 

sufficient documentation to satisfy the second prong of the Decline Only test. 

For that ruling to create a conflict with the one now before us, it must have 

involved substantially identical claimants relying on substantially identical 

documentation.

One immediately noticeable difference is that the previous decision dealt 

with a zone C claimant and not a zone D claimant like Bickford. Both zone D 

and zone C claimants can utilize a Decline Only test to show causation. The 

documentation for zone C claimants using the Decline-Only test is found in 

Section II.C, while the zone D requirements are found in Section III.C. There 

is at least one material difference. Section II.C requires “[s]pecific 

documentation identifying factors outside the control of the claimant that 

prevented the recovery of revenues in 2011, such as” the six factors we 

previously quoted from Section III.C. Section III.C is identical except that

“such as” is omitted. 

It is a small difference at first look, but upon reflection the difference 

takes on a more meaningful aspect. One section lists representative 

documentation while the other has an exhaustive list. Thus, the district court 

did not allow a clear difference between appeals panels to go unaddressed. 

This specific terminology is noted in Policy Statement 474: “The Claims 

Administrator interprets the inclusion of the phrase ‘such as’ in Section II.C to 

mean that the list of factors is not an exhaustive list.” It is completely 

consistent with this interpretation for us to hold that the absence of “such as” 

in Section III.C, which is the section that applies to this case, renders the list 

of factors exhaustive.

We need not consider whether the appeal panel applied a legally 

incorrect definition of “objective” when dismissing the documentation because 

Bickford’s Dodd-Frank articles do not address any of the factors required by 

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Section III.C. Bickford did not satisfy Section III.C because Bickford failed to 

provide specific documentation addressing one of the enumerated factors. 

The district court did not abuse its discretion in denying Bickford’s 

petition for discretionary review.

AFFIRMED.

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