IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30137

CLAIMANT ID 100196090, 

 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 HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Cody Fortier Farms LLC (“CF Farms”) is a dirt-work services business 

based in Opelousas, Louisiana. In 2011, it filed a claim with the Deepwater 

Horizon Court Supervised Settlement Program. CF Farms alleges that the 

Program’s Claims Administrator misapplied the Settlement Agreement in 

treating CF Farms’ management-fee expenses as revenues received in nonarm’s-length transactions. CF Farms alleges that this mistake led the Claims 

 

* 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

December 13, 2018

Lyle W. Cayce

Clerk
No. 18-30137

2

Administrator to understate its benchmark profits, resulting in under 

compensation. After CF Farms exhausted appeals within the Program, it 

sought discretionary review at the district court. The district court declined to 

review the question. We affirm the district court’s decision.

I.

Our prior opinions describe the Deepwater Horizon disaster and explain 

the origins of the Court Supervised Settlement Program and the Deepwater 

Horizon Economic and Property Damages Settlement Agreement (“Settlement 

Agreement”).1 Under the Settlement Agreement, appellee BP agreed to 

compensate claimants’ business and economic losses as measured by decreases 

in the claimant’s variable profits attributable to the disaster, plus 

compensation for lost growth.2 To assure the accuracy of the pre-disaster 

benchmark, the Claims Administrator does not count amounts that a claimant 

labelled as “revenues” for accounting purposes, but do not accurately represent 

the claimant’s pre-disaster business operations. While arms-length 

transactions are subject to market discipline, the same discipline may be 

lacking when transactions are between related parties, and so including 

related-party transactions in loss calculations could lead to overcompensation.

For this reason, under a policy known as Policy 328, the Claims Administrator 

excludes income streams received in related-party transactions from loss 

calculations.

The Settlement Agreement also established a procedure for the 

evaluation and processing of claims. After claimants submit claims, the Claims 

 

1 See generally In re Oil Spill by Oil Rig “Deepwater Horizon,” 910 F. Supp. 2d 891 

(E.D. La. 2012), aff’d sub nom. In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014).

2 Variable profit refers to the claimant’s revenues less variable costs (fixed costs are 

excluded from the calculations). See also In re Oil Spill, 910 F. Supp. 2d at 905 (describing 

method for calculation of business economic loss claims).
No. 18-30137

3

Administrator determines whether the claimant is eligible, and, if so, the 

amount of compensation. After the Claims Administrator has issued a 

determination on the claim, the claimant has the opportunity to appeal the 

determination to an Appeal Panel, which will issue a decision reviewing the 

Claim Administrator’s decision. The claimant then has the opportunity to seek 

judicial review at the discretion of the district court.3 The claimant may appeal 

the district court’s judgment to this court.

II.

In March 2013, CF Farms filed a claim with the Settlement Program for 

business and economic losses of $2,529,000 using claimant identification 

number 100196090. CF Farms selected 2008 and 2009 as its benchmark 

period, and used 2010 for its post-disaster comparison, and provided financial 

statements for both periods. Among the entries in its benchmark-period 

statements, CF Farms listed large “management fee” expenses. Following the 

submission of the claim, the Claims Administrator wrote to CF Farms seeking 

more information about these management-fee expenses. Specifically, the 

Administrator sought “a description of ‘Management Fees’ in 2008 and 2009 

and how it [sic] relates to the increase in revenue in these years.” In response, 

CF Farms explained that these were payments “made to service the debt for 

equipment owned by the owner. The management fee is determined based on 

owner’s needs and not by jobs worked on.”

On March 23, 2017, the Claims Administrator determined that CF 

Farms was due compensation in the amount of $57,394—roughly 2.2 percent

 

3 In re Deepwater Horizon, 785 F.3d 1003, 1007 (5th Cir. 2015) (“A party may then 

appeal the Appeal Panel’s determination to the district court of Judge Barbier in the Eastern 

District of Louisiana, which has discretion to hear such appeals.”).
No. 18-30137

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of the claim.4 Settlement Program accountants determined that large fractions 

of CF Farms’ revenues during the benchmark period were not attributable to 

normal business operations, but rather were collections made for and passed 

through to Cody Fortier Equipment, a company owned by the same individual 

who owned CF Farms. Accountants determined that the management-fee

expenses demonstrated that “revenues recorded on the [profit and loss 

statements] are collections on behalf of the related party company and are 

remitted to that related party on an as needed basis.” The Claims 

Administrator therefore applied a contra-revenue account in the amount of 

these management fees, reducing benchmark revenues in a corresponding 

amount for purposes of calculating the claim.

CF Farms challenged the determination before the Appeals Board, 

arguing that the Claims Administrator had “improperly determined that a 

Management Fee expense of the claimant should be classified as a ContraRevenue account and incorrectly moved an expense due to an alleged related 

party transaction,” under a policy that only pertained to “the reclassification 

or negating of revenue—not expenses.” The Appeals Board requested 

explanation from the Claims Administrator regarding “how said Policy [328] 

(which on its face applies only to the treatment of revenues) was used in this 

case to reclassify an[] expense.” In response, the Claims Administrator 

explained that based on the claimant’s description of the Management Fee 

Expenses, “DWH Accountant has concluded that revenues recorded on the 

P&Ls are collections on behalf of the related party company and are remitted 

 

4 CF Farms had requested reconsideration of an initial Eligibility Notice, issued on 

October 3, 2016, determining compensable losses to be $69,349. The initial determination is 

not at issue in this appeal.
No. 18-30137

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to that related party on an as needed basis.” The Appeals Panel affirmed the 

Claim Administrator’s determination.

CF Farms petitioned for discretionary review by the district court. In its 

request, CF Farms described the “question presented” as “a purely legal one: 

Does Policy 328[] apply to the treatment and/or reduction of only revenues, 

rather than expenses?” Insisting that this question would affect “not only this 

claim, but many that are destined to follow this pattern,” CF Farms urged the 

district court to exercise its discretion to review the decision. The district court

declined review. CF Farms appeals that denial.

III.

The Settlement Agreement is governed by maritime law, and, therefore, 

we have jurisdiction over appeal of the district court’s interlocutory decree 

“determining the rights and liabilities of the parties to admiralty cases in 

which appeals from final decrees are allowed.”5 The district court’s review of 

Appeals Board decisions is discretionary.6 The parties to the Settlement 

Agreement did not anticipate that the district court would “act as the arbiter 

of each individual claim.” “Discretionary Court Review of an Appeal Panel 

Determination is a form of extraordinary relief that will be conducted only in 

rare and exceptional circumstances.” We review the district court’s denial of 

discretionary review for abuse of discretion.7 We find an abuse of discretion 

where the district court denies review in the face of a recurring issue on which 

Appeals Panels are split,8 or a contradiction or misapplication of the 

 

5 28 U.S.C. § 1292(a)(3).

6 Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 316 (5th Cir. 2016).

7 Id. at 315.

8 Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017).
No. 18-30137

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Settlement Agreement.9 The district court’s exercise of discretion to decline 

review of a factual dispute confined to the circumstances of an individual claim 

is not an abuse of discretion.10

CF Farms’ appeal poses an initial question about questions: what

dispute did the district court decline to review? CF Farms argues that the 

question posed to the district court was purely legal: “Does Policy 328 . . . apply 

to the treatment and/or classification of only revenues, rather than expenses?” 

BP on the other hand argues that CF Farms sought review of a factual dispute: 

whether “the particular revenues at issue in this case were not . . . passed 

through” to a related entity.

BP is correct. The parties agree that Policy 328 provides the operative 

rule here. Contra CF Farms’ account, the parties, the Claims Administrator

and the Appeals Board all agree that Policy 328 applies only to revenues and 

not expenses. When the Claims Administrator reduced benchmark revenues 

in an amount equivalent to “management fees expenses,” there was no 

mistaken treatment of expenses as revenues. Rather, the Claims 

Administrator determined that CF Farms’ management-fee expenses, taken 

together with information on the owner’s tax returns, demonstrated that a 

corresponding revenue during the same period were accounted for by relatedparty transactions, specifically by collections for Cody Fortier Equipment, an 

activity that it determined was unrelated to CF Farms’ normal dirt-services 

operations. CF Farms disputes the Claims Administrator’s inferential step 

 

9 Holmes Motors, Inc., 829 F.3d at 315.

10 In re Deepwater Horizon, 641 F. App’x 405, 410 (5th Cir. 2016) (unpublished) (“If 

the discretionary nature of the district court’s review is to have any meaning, the court must 

be able to avoid appeals like this one which involve no pressing question of how the 

Settlement Agreement should be interpreted or implemented, but simply raise the 

correctness of a discretionary administrative decision in the facts of a single claimant's 

case.”).
No. 18-30137

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from expenses and tax returns to corresponding revenues. This is a factual 

dispute.

Whether the Claims Administrator’s factual determination was accurate

is a question not before us. We ask only whether the district court abused its 

discretion in declining review of this question. The dispute is not about a 

misapplication of the Settlement Agreement—the dispute is about to which 

factual premises the Agreement should be applied. Nor does this case pose a 

potentially recurring problem that will afflict the Settlement Program if left 

unaddressed: it is narrowly confined to the facts of CF Farms’ submission, its 

underlying business operations, and the Claims Administrator’s reasoning on 

the facts of this claim. We find no abuse of discretion in the district court’s 

decision to decline review.

IV.

The parties agree that briefs and other documents in the record 

containing CF Farms’ confidential information should remain sealed. Because 

in this case CF Farms’ confidential information is found throughout the briefs 

and record, these documents should remain sealed.

V.

For the foregoing reasons, we AFFIRM the district court’s denial of 

discretionary review and ORDER that the briefs and record in this case remain 

sealed.