IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30823

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, P.L.C., 

 Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

In May 2012, BP Exploration & Production Inc. (“BP”) and related 

entities reached a settlement with a class of individuals who suffered economic 

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2015

Lyle W. Cayce

Clerk

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and property damage after the Deepwater Horizon incident. That settlement 

agreement established a fund and an elaborate multi-tiered claims process. A 

provision in the agreement governs the scope and timing of the parties’ access 

to information about these claims as they advance through that process. The 

district court determined that the provision did not entitle the parties to claimspecific information until an initial decision about a claim’s eligibility had been 

made by the settlement program. BP appeals that decision. Counsel for the 

settlement class (“Class Counsel”) argue chiefly that this court lacks 

jurisdiction to hear the appeal. We agree and DISMISS for lack of jurisdiction. 

I. BACKGROUND

The district court approved the settlement and expressly adopted it in a 

December 2012 order. The agreement (the “Settlement Agreement” or the 

“Agreement”) provides that the district court retains “continuing and exclusive 

jurisdiction over the Parties and their Counsel for the purpose of enforcing, 

implementing and interpreting th[e] Agreement.” At the time of briefing in this 

case, 288,000 claims had been filed, resulting in 75,000 awards totaling $5.2 

billion.

The settlement regime (“Settlement Program”) provides for the

resolution of a variety of claims—e.g., business economic loss claims, vessel 

damage claims, coastal real property damage claims—through a wide array of 

procedures. Submitting a claim requires providing completed forms and 

documentation proof such as tax returns and profit/loss statements.

After the Settlement Program makes a determination about a particular 

claim’s eligibility, a claimant or BP may, in certain circumstances, avail 

themselves of a multi-tiered internal review process crafted to “assure 

accuracy, transparency, independence, and adherence” to the terms of the 

Settlement Agreement. The deadline for internal appeal of an eligibility 

determination is a function of which party appeals and the amount of the 

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award, but all appeals must be filed within 30 days of notice of the award. 

Appeals are heard de novo by a panel, whose decision is intended to be “final.” 

Discretionary review, however, is available in the district court, which treats 

the panel’s decision like a magistrate judge’s report and recommendation, 

reviewing de novo any dispositive issues. See Fed. R. Civ. P. 72(b)(3).

The disputed provision here, § 4.4.14 of the Settlement Agreement, 

governs access to information associated with individual claims and the precise 

timing of that access. The relevant excerpt reads:

BP and Class Counsel shall have access to all Claim Files and 

Claims-related data transferred to or generated in the Settlement 

Program for any legitimate purpose including, without limitation, 

the operation of BP’s separate [Oil Pollution Act] facility, 

prosecuting and defending appeals, reviewing and auditing the 

Settlement Program, reporting financial results, and pursuing 

indemnification, contribution, subrogation, insurance and other 

claims from third parties. However, BP and Class Counsel shall 

not have access to any Claim Files for Claims that are being 

processed and have not yet been resolved in the Settlement 

Program except if the Claim File is needed by BP, a Claimant, or 

their counsel to prosecute or defend an Appeal.1

Class Counsel claim that BP violated § 4.4.14 by accessing claim-specific 

information on an internal site run by the Claims Administrator and used

regularly by the parties in the normal operation of the Settlement Program.

BP counters that it was permitted to do so under § 4.4.14. After this dispute 

arose, the Claims Administrator interpreted § 4.4.14 to permit both parties to 

access claim-specific information before issuance of an eligibility notice. After 

such notice, the Claims Administrator determined, BP and Class Counsel

could view the internal work files of the program.

 

1 The Settlement Agreement defines “Claim” as “any demand or request for 

compensation . . . together with any properly completed form and accompanying required 

documentation, submitted by a Claimant to the Settlement Program.” The terms “Claim File” 

and “Claims-related data” are not defined in the Settlement Agreement.

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In February 2014, Class Counsel brought a motion seeking to block BP’s 

access to claim-specific information before the Settlement Program made an 

initial determination about a claim’s eligibility. The district court determined 

in an order dated March 25, 2014 (the “March 25 Order”) that neither BP nor 

Class Counsel should be permitted “access to any individual claim file before 

the Program issues a Denial Notice or an Eligibility Notice.”

BP filed a motion for reconsideration and cited five examples of 

situations where access to pre-determination, claim-specific data on one claim 

helped the company detect an improper award on a post-determination claim.

For example, in one case, BP’s review of claim-specific data on a group of predetermination individual claims for property damage to a single building 

revealed that a different claimant had already received a $1.8 million award 

for the same damage alleged by the pre-determination claimants. BP appealed

that award, and an appeals panel reversed it. BP’s five examples show 

improper awards totaling about $4 million. The district court adhered to its 

prior holding in a June 6, 2014 order (the “June 6 Order”) denying BP’s motion

for reconsideration.2 The court noted that BP’s request for “all predetermination data is not justified either by the express terms of the 

Settlement Agreement or by the few examples it cites in its motion.” While “no 

program handling hundreds of thousands of claims can be flawless,” the court 

stated, the elaborate fraud-protection measures in place were sufficient to 

protect BP.

BP has appealed, citing two bases for jurisdiction. First, BP contends 

that this court has jurisdiction to review the district court’s Orders under the 

collateral order doctrine. Alternatively, BP argues, this court can assert 

 

2 For simplicity, we will refer to the March 25 and June 6 orders collectively as the 

“Orders.”

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jurisdiction under 28 U.S.C. § 1292(a)(1), which permits appellate jurisdiction 

in limited circumstances when, as relevant here, a court grants or modifies an 

injunction. Finally, on the merits, BP claims that the district court incorrectly 

interpreted the Settlement Agreement to prevent it from accessing claimspecific data on unresolved claims.

II. DISCUSSION

The Orders did not terminate all proceedings in this case, so the panel 

must first determine if jurisdiction exists. Because we conclude that we lack 

jurisdiction under either the collateral order doctrine or § 1292(a)(1), we do not 

reach the merits. 

A. Collateral Order Doctrine

BP first invokes the collateral order doctrine as a basis for jurisdiction. 

As relevant here, 28 U.S.C. § 1291 provides that the courts of appeal have 

“jurisdiction of appeals from all final decisions of the district courts.” 

Generally, a final decision is one “by which a district court disassociates itself 

from a case.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995). The

collateral order doctrine—typically associated with Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 545–46 (1949)—is “best understood not as an 

exception” to this finality rule, “but as a practical construction of it.” Will v. 

Hallock, 546 U.S. 345, 349 (2006) (internal quotation marks and citations 

omitted). 

The doctrine supplies jurisdiction for a “‘small class’ of pre-judgment 

orders that ‘finally determine claims of right separable from, and collateral to, 

rights asserted in the action [and that are] too important to be denied review 

and too independent of the cause itself to require that appellate consideration 

be deferred until the whole case is adjudicated.’” Lauro Lines s.r.l. v. Chasser, 

490 U.S. 495, 498 (1989) (quoting Cohen, 337 U.S. at 546). Put otherwise, we 

have jurisdiction under the collateral order doctrine when an order: (1) 

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conclusively determined the disputed question; (2) resolved an important issue 

separate from the merits of the case; and (3) is effectively unreviewable on 

appeal from a final judgment. See Will, 546 U.S. at 349; Richardson-Merrell 

Inc. v. Koller, 472 U.S. 424, 431 (1985) (citation omitted).3

“Importance” has sometimes been characterized as a discrete fourth 

requirement and other times been wrapped up in an analysis of both the second 

and third requirements. See Mohawk Indus. Inc. v. Carpenter, 558 U.S. 100, 

107 (2009) (explaining that the question of whether a right is effectively 

unreviewable “cannot be answered without a judgment about the value of the 

interests that would be lost through rigorous application of a final judgment 

requirement” (internal quotation marks and citation omitted)); Will, 546 U.S. 

at 353 (recognizing that effective unreviewability requires that a “substantial 

public interest” be imperiled); Lauro Lines, 490 U.S. at 502 (Scalia, J., 

concurring) (“The importance of the right asserted has always been a 

significant part of our collateral order doctrine.”); Henry v. Lake Charles Am. 

Press LLC, 566 F.3d 164, 178–181 (5th Cir. 2009) (analyzing “importance” as 

a distinct fourth requirement); Eric J. Magnuson & David F. Herr, Federal 

Appeals: Jurisdiction and Practice § 2.4 (2015) (same).4

The Court has repeatedly stressed that the conditions for appeal under 

the collateral order doctrine are “stringent.” E.g., Digital Equip. Corp. v. 

Desktop Direct Inc., 511 U.S. 863, 868 (1994). Expanding the doctrine to permit 

jurisdiction in too many cases risks allowing the exception to swallow the rule. 

 

3 It is undisputed here that the Orders were conclusive and separate from the merits. 

4 This court recently addressed the taxonomic uncertainty in this area in NCDR, 

L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 748 n.5 (5th Cir. 2014) (“[I]t [is] not clear 

whether importance is a fourth requirement or is instead wrapped up in the second and third 

requirements.”). This is an academic dispute. It is quite clear from both the Supreme Court’s 

collateral order doctrine jurisprudence and our own that the importance of the asserted right 

is a significant component in the jurisdictional analysis under this doctrine.

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See Will, 546 U.S. at 349–50; Digital Equip., 511 U.S. at 868; Firestone Tire & 

Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (identifying the substantial 

finality interests in judicial efficiency and the “sensible policy of avoiding the 

obstruction to just claims that would come from permitting the harassment 

and cost of a succession of separate appeals from the various rulings to which 

a litigation may give rise” (internal quotation marks, alterations, and citation 

omitted)). 

A brief comparison of the types of orders immediately appealable under 

the collateral order doctrine with those not immediately appealable is 

instructive. Immediately appealable orders include: those rejecting absolute 

immunity or qualified immunity; denying a state’s claim to Eleventh 

Amendment immunity; and—in the criminal context—a defendant’s adverse 

ruling on a double jeopardy defense. See Will, 546 U.S. at 350 (collecting cases). 

These types of orders, the Court explained, implicate weighty public interest 

concerns: in each one, “some particular value of a high order” was at issue. Id.

at 352.

By contrast, orders generally not immediately appealable under the 

collateral order doctrine include: denial of a motion to enforce a forum selection 

clause or to dismiss on forum non conveniens grounds, see Lauro Lines, 490 

U.S. at 496; Van Cauwenberghe v. Biard, 486 U.S. 517, 527–530 (1988); 

discovery orders generally (including orders permitting discovery into

otherwise-privileged, attorney–client communication because of waiver), see 

Richard L. Marcus et al., Civil Procedure: A Modern Approach 1149–51 (6th 

ed. 2013); Mohawk, 558 U.S. at 103, 108; attorney disqualification decisions, 

see, e.g., Richardson–Merrell, 472 U.S. at 426 (order disqualifying counsel in 

civil case not immediately appealable); Flanagan v. United States, 465 U.S. 

259, 260 (1984) (same outcome in criminal case, despite Sixth Amendment 

rights at issue); and an order refusing to enforce a settlement agreement that 

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allegedly sheltered a party from suit, see Digital Equip., 511 U.S. at 879, 884 

(“Including [an immunity] provision in a private contract . . . is barely a prima 

facie indication that the right secured is ‘important’ to the benefited party.”).5

The collateral order doctrine has been successfully invoked in favor of 

jurisdiction in three appeals in this court arising from this Settlement 

Program. In the first of these cases, this court heard an appeal arising from a

dispute about an interpretation of the Settlement Agreement. See In re 

Deepwater Horizon, 732 F.3d 326, 329 (5th Cir. 2013) (“Deepwater Horizon I”). 

The appeal involved an accounting methodology that potentially affected 

“thousands of claimants” and “hundreds of millions of dollars” in the business 

economic loss recovery framework. Id. at 331, 332 n.3, 345. We determined that 

the district court’s order conclusively resolved the interpretive dispute, that 

the dispute was “separate from the merits of BP’s liability for the oil spill,” and 

that the order would “be effectively unreviewable on appeal from final 

judgment because, at that point, the improper awards will have been 

distributed to potentially thousands of claimants and BP will have no practical 

way of recovering these funds should it prevail.” Id. at 332 n.3 (citing Walker 

v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 766–67 (5th Cir. 1996)). 

In two subsequent companion appeals, this court relied on Deepwater

Horizon I to again find jurisdiction under the collateral order doctrine. One of 

these cases dealt with an order approving a set of final rules governing 

discretionary review in the district court of internal appeal determinations. See 

 

5 When assessing an order’s appealability, courts should not engage in an 

“individualized jurisdictional inquiry.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 

(1978). Instead, the focus should be on the “entire category to which a claim belongs.” Digital 

Equip., 511 U.S. at 868; see also Mohawk, 558 U.S. at 107. Thus, in NCDR, this court looked 

not to whether the order in that particular case was immediately appealable, but rather to 

whether orders in that context would generally “satisfy the conditions of the collateral order 

doctrine.” 745 F.3d at 748 (citing Henry, 566 F.3d at 173).

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In re Deepwater Horizon, 785 F.3d 986, 989 (5th Cir. 2015) (“Deepwater 

Horizon II”). In that case, we asserted jurisdiction because the decision was 

conclusive and separate from the merits, and because:

[t]he Final Rules affect the rest of the Settlement Program’s 

administration, given that they will govern all future reviews by 

the district court. Because the Final Rules preclude appeals of 

certain cases to the district court, and because they are silent as to 

appeals to this court and lack requirements to file requests or 

docket orders on the civil docket, they would be unreviewable from 

a final judgment of claim determinations were we not to review 

them in this case.

Id. at 993 (emphasis added). The underlying order therefore had substantial,

settlement-wide ramifications.

The last relevant appeal (which in fact involved three consolidated 

appeals from individual awards) centered on another interpretive dispute 

about whether donations and grants could qualify as “revenue” for nonprofit

organizations under the Settlement Agreement for purposes of calculating loss. 

See In re Deepwater Horizon, 785 F.3d 1003, 1006 (5th Cir. 2015) (“Deepwater 

Horizon III”). This court decided that the three awards had conclusively 

determined the recovery amount for the three claimants; that the dispute 

about the interpretation of the Settlement Agreement with respect to nonprofit 

revenue was completely separate from the merits; and that the order would be 

“effectively unreviewable if BP had to wait until the settlement of the entire 

class action, when awards ‘will have been distributed to potentially thousands 

of claimants and BP will have no practical way of recovering these funds should 

it prevail.’” Id. at 1009 (quoting Deepwater Horizon I, 732 F.3d at 332 n.3). 

BP rightly concedes that not every dispute over an interpretation of the

Settlement Agreement resolved in the district court is immediately appealable 

to this court. But the two primary limiting principles it proposes are 

unsatisfying in this case. First, BP contends that this case, like the other BP 

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appeals in which this court permitted application of the doctrine, involves an 

important issue and effectively unrecoverable funds. Second, BP claims, this 

case arrives here in a post-judgment posture.6 The thrust of this argument is 

that we need not fear opening up Pandora’s Box by permitting wholesale abuse 

of the collateral order doctrine because appeals in the post-judgment context 

are rare. We take these arguments in turn. 

BP’s first contention is that its purported right to the information at 

issue in this case presents an important issue with effectively unrecoverable 

funds at stake. While these arguments might have justified immediate 

appealability in Deepwater Horizon I, II, and III, they fall short in this case. In 

each of the aforementioned cases, we determined that the orders at issue were

effectively unreviewable at least in part based on their broad ramifications to 

the administration of the settlement. Appealability was endorsed in Deepwater 

Horizon I because the interpretation affected “potentially thousands of 

claimants.” 732 F.3d at 332 n.3. The same was true in Deepwater Horizon III. 

See 785 F.3d at 1009. Deepwater Horizon II presented an even stronger case 

for appealability because the rules at issue might have prevented certain 

appeals to the district court and possibly all appeals to this court. See 785 F.3d 

at 992–93. At issue in each of these cases was more than the right to an 

accurate interpretation of a Settlement Agreement provision. The right in 

these cases is better characterized as the right to an interpretation of the 

Settlement Agreement on an issue with a serious impact on the effective and 

fair administration of the settlement.

By that measure, the disputed issue in this case does not stack up. Here, 

BP claims, principally, that it needs specific information about pre-

 

6 The case is post-judgment in the sense that a final order approving the settlement 

has been entered. See Bogard v. Wright, 159 F.3d 1060, 1062 (7th Cir. 1998) (citing, inter 

alia, Edwards v. City of Houston, 78 F.3d 983, 993 (5th Cir. 1996) (en banc)).

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determination “Claim A” in order to establish the legitimacy (or illegitimacy) 

of separate, but related, post-determination “Claim B.” BP states that there 

have been about 288,000 claims filed and 75,000 awards totaling $5.2 billion

at the time of briefing. But although by its own account it had “uninterrupted 

access to claimant-specific information” (except internal Settlement Program

work files) for nearly 20 months, at the time of briefing BP had appealed 4,728 

claim determinations, see Report by the Claims Administrator at 18, In re 

Deepwater Horizon, MDL No. 2179 (E.D. La. Nov. 26, 2014), ECF No. 13729, 

and directs the panel to only five fruitful appeals (from which it recouped about 

$4 million) where pre-determination information proved useful to its success. 

This does not constitute a showing of a disruption to the Settlement Program 

framework rising to the level of the disruptions in Deepwater Horizon I, II, and 

III, where either thousands of claims or all claims were unavoidably impacted 

by the interpretations at issue. See Deepwater Horizon I, 732 F.3d at 332 n.3; 

Deepwater Horizon II, 785 F.3d at 992–93; Deepwater Horizon III, 785 F.3d at 

1009. Here, by contrast, BP has shown a total of five claims in which this data 

appeared to have made any difference at all.7

We similarly see little merit in BP’s argument that it needs this data for 

“reviewing and auditing the Settlement Program” and “pursuing 

indemnification, contribution, subrogation, insurance and other claims from 

 

7 Still, BP argues, why is $4 million in proven fraud—detected at least in part with 

the assistance of pre-determination data—insufficient to confer a right to immediate 

appealability in this case? And BP correctly notes that both Walker v. U.S. Department of 

Housing & Urban Development and Deepwater Horizon III—both of which permitted 

appeal—involved amounts far below the $4 million at issue here. See Walker, 99 F.3d at 766–

67 ($910,228.13); Deepwater Horizon III, 785 F.3d at 1007 (involving awards totaling about 

$1.2 million). But this argument misses the mark. We reiterate that an individualized 

jurisdictional inquiry (one in which a court evaluates an order’s appealability based on the 

particular facts presented, rather than looking to the category in which the asserted right 

falls) is improper. See Mohawk, 558 U.S. at 107; NCDR, 745 F.3d at 748; Henry, 566 F.3d at 

173.

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third parties.” BP never justifies its need for pre-determination, claim-specific 

data to exercise these rights. If BP were seeking contribution or subrogation 

for a particular claimant’s demonstrated loss, for example, it would 

presumably be because that claim’s legitimacy had been conclusively 

determined. By that time, BP would have access to any data it needs related 

to that particular claim.

In addition, the Settlement Agreement has an entire preexisting 

framework in place to address fraud. Anyone—including members of the 

general public—can report fraud to the Claims Administrator, and a special 

master, former Federal Bureau of Investigation Director Louis Freeh, has been 

tasked with assisting the program with fraud prevention. The MDL docket 

reveals that Freeh has been actively bringing claims to recoup fraudulently 

obtained funds. Federal prosecutors, too, have brought criminal charges 

against individuals who have allegedly committed fraud.8 There was no 

comparable way to recoup improper awards in Deepwater Horizon I, II, or III.

Even were it otherwise, “[t]he mere identification of some interest that 

would be ‘irretrievably lost’ has never sufficed to meet the third Cohen

requirement.” Digital Equip., 511 U.S. at 872. This is why immediate 

appealability is denied even when, as noted earlier, a criminal defendant seeks 

 

8 When filling out paperwork to submit a claim, a claimant must declare under penalty 

of perjury that the information provided is true and accurate. One mandatory form for all 

claimants contains the following language: “I understand that false statements or claims . . . 

may result in fines, imprisonment, and/or any other remedy available by law to the Federal 

Government, and that suspicious claims will be forwarded to federal, state, and local law 

enforcement agencies for possible investigation and prosecution.” The Department of Justice 

has placed a “high priority on promptly investigating and prosecuting all meritorious reports 

of fraud related to the oil spill and its aftermath.” See U.S. Dep’t of Justice, Deepwater 

Horizon (BP) Oil-Spill Fraud, available at http://www.justice.gov/criminal/oilspill/. A website 

owned and operated by BP that tracks legal developments related to the oil spill states that 

there have been 264 reported fraud cases leading to criminal charges, and 187 convictions

stemming from reported fraud cases. See The Whole Story, State of the Gulf, 

https://www.thestateofthegulf.com/the-whole-story/fraud-tally/ (last updated June 24, 2015). 

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reinstatement of his disqualified attorney, see Flanagan, 465 U.S. at 260, or, 

as in Coopers & Lybrand v. Livesay, an erroneous district court order would,

as a practical matter, sound the death knell for plaintiffs’ claims that might 

have been successful had the error been corrected on appeal. See 437 U.S. 463, 

473–74 (1978) (“Perhaps the principal vice of the ‘death knell’ doctrine is that 

it authorizes indiscriminate interlocutory review of decisions made by the trial 

judge.”). Orders like these result in harm far more irreparable than the injury

at issue in this case. Here, BP will eventually come into possession of all the 

data it claims to need. At that time, it will be able to cross-check individual 

claims for fraud that has not already been detected and pursue any of a variety 

of available avenues to recoup improperly awarded funds.

Walker v. U.S. Department of Housing and Urban Development, on which 

BP relies, is not to the contrary. See 99 F.3d at 766. In Walker, attorneys for 

plaintiffs in a housing discrimination class action won fees for work they 

undertook outside of the immediate scope of the litigation, including for

monitoring a consent decree and pursuing environmental claims to address 

lead poisoning. See id. We held the fee order appealable under the collateral 

order doctrine in part because the victories did not result from litigation, so the 

orders were not “appealable or in any way subject to reversal.” Id. By contrast, 

any fraudulently obtained award here—discoverable with the aid of the data 

BP seeks—will be uncovered sooner or later, since BP will eventually have 

access to this data. Even if this means BP will not be able to bring a timely

appeal in the Settlement Program—which is far from certain—other avenues 

to challenge the award remain open. See In re Deepwater Horizon, 753 F.3d 

516, 520 n.5 (5th Cir. 2014) (Clement, J., dissenting from denial of rehearing 

en banc) (“BP may seek recovery for losses due to fraud in individual actions, 

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and government prosecutors may pursue those who submit fraudulent 

claims.”).9

Interpreting effective unreviewability to permit appeal in this case 

would signify that each time BP could show a handful of claims arguably 

impacted by the district court’s interpretation of the Settlement Agreement, it 

could immediately appeal to this court. The limited benefits of such 

unrestricted access to the appellate court are outweighed by the attendant 

systemic disruption and institutional cost. See Mohawk, 558 U.S. at 112; 

Digital Equip., 511 U.S. at 884.

BP’s second contention, that there is little prospect for abuse of the 

collateral order doctrine in the post-judgment context, is belied, first, by the 

sheer quantity of appeals that BP, Class Counsel, and individual plaintiffs 

have brought since reaching the Settlement Agreement. As noted above, BP 

has appealed: a determination about the accounting method in the business 

economic loss framework, see Deepwater Horizon I, 732 F.3d at 329–32; an 

order approving the rules governing internal appeals procedures, see 

Deepwater Horizon II, 785 F.3d at 989; and various claimant awards premised 

on an interpretation of the Settlement Agreement governing nonprofit awards, 

see Deepwater Horizon III, 785 F.3d at 1006. BP has also challenged: the 

validity of the Settlement Agreement itself (No. 13-30095); the dismissal of a 

lawsuit to enjoin the Claims Administrator from distributing payment on 

business economic loss claims (No. 13-30329); the causation standards relevant 

to certain business losses (No. 13-31220); the denial of a motion to recoup 

business loss payments issued under a later-rejected accounting method (No. 

 

9 In Deepwater Horizon I, 732 F.3d at 332 n.3, however, Walker was properly invoked 

because there is no indication that BP had recourse outside the immediate bounds of the 

settlement framework to address awards calculated under an improper accounting 

methodology. See Walker, 99 F.3d at 766.

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14-31165); and the denial of a motion to remove the Claims Administrator (No. 

14-31299). 

Class Counsel have filed their own various appeals, and dissatisfied 

individual claimants have done so as well. Although the collateral order 

doctrine has thus far supplied jurisdiction in Settlement Agreement disputes 

only in Deepwater Horizon I, II, and III—and some of the other decided appeals 

have asserted jurisdiction on other grounds—the potential for this “‘narrow’

exception . . . to swallow the general rule,” Digital Equip., 511 U.S. at 868 

(citation omitted), is obvious enough.

The notion that we should loosen the strings in the context of postjudgment proceedings like this one is further undermined by the increasing 

frequency of court-supervised settlement agreements and consent decrees.10

See Larry Kramer, Consent Decrees and the Rights of Third Parties, 87 Mich. 

L. Rev. 321, 321 (1988) (recognizing that settlement by consent decree has 

become increasingly common in antitrust cases, “environmental cases, prison 

cases, school and housing desegregation cases, and especially employment 

discrimination cases”). Our circuit alone is home to a multitude of ongoing 

consent decrees related to, among other issues, desegregation of public 

workplaces, prisoner’s rights, and health care mandates. 

 

10 Although the Settlement Agreement at issue is not a consent decree, the judicial 

imprimatur associated with the incorporation of the Agreement in the approval order and 

the ongoing retention of jurisdiction renders the distinction thin. See Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 381 (1994); Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 

281 (4th Cir. 2002) (“Where a settlement agreement is embodied in a court order such that 

the obligation to comply with its terms is court-ordered, the court’s approval and the 

attendant judicial over-sight (in the form of continuing jurisdiction to enforce the 

agreement) . . . may be functionally a consent decree . . . .”); see also Buckhannon Bd. & Care 

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 618 (2001) (Scalia, J., 

concurring) (“[I]n the case of court-approved settlements and consent decrees, even if there 

has been no judicial determination of the merits, the outcome is at least the product of, and 

bears the sanction of, judicial action in the lawsuit.” (emphasis omitted)).

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In this case, as in the many others like it discussed above, an earlier 

decision of ours in a multidistrict litigation “of nearly unprecedented scope” 

illuminates the problem:

Before the litigation is completed, the case will undoubtedly

present numerous opportunities for parties dissatisfied with some 

aspect of a court ruling to claim entitlement to appellate review. 

In the context of such complex litigation it is important to 

remember that “we must be parsimonious in our analysis of 

appealability.”

In re Corrugated Container Antitrust Litig., 611 F.2d 86, 89 (5th Cir. 1980) 

(citing N. Am. Acceptance Corp. Sec. Cases v. Arnall, Golden & Gregory, 593 

F.2d 642, 645 (5th Cir. 1979)). The prospect for abuse of the collateral order 

doctrine in post-judgment proceedings is plainly evident. We therefore reject 

the notion that this would serve as an effective limiting principle were we to 

permit appeal here.

We emphasize three additional reasons for our ruling today. First, we 

highlight the deference “owe[d] to the trial judge as the individual initially 

called upon to decide the many questions of law and fact that occur” over the 

course of a litigation. Firestone Tire & Rubber Co., 449 U.S. at 374. “Permitting 

piecemeal appeals would undermine the independence of the district judge, as 

well as the special role that individual plays in our judicial system.” Id.; see 

also Mohawk, 558 U.S. at 106–07; Johnson v. Jones, 515 U.S. 304, 315–17 

(1995); Richardson–Merrell, 472 U.S. at 436. This is perhaps nowhere more 

true than in the management of the Deepwater Horizon class action litigation, 

the scope and size of which are nearly unprecedented. See In re Corrugated 

Container Antitrust Litig., 611 F.2d at 89 (emphasizing special concerns about 

overuse of the collateral order doctrine in complex litigation).11

 

11 To the extent that interpretation of § 4.4.14 of the Settlement Agreement might rest 

on factual determinations about the parties’ course of conduct, a point BP presses in its 

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Second, we call attention to the general rule that only serious and 

unsettled questions of law come within the collateral order doctrine. See Nixon 

v. Fitzgerald, 457 U.S. 731, 742 (1982) (“As an additional requirement, Cohen

established that a collateral appeal of an interlocutory order must ‘presen[t] a 

serious and unsettled question.’” (citing Cohen, 337 U.S. at 547)); Baldridge v. 

SBC Commc’ns, Inc., 404 F.3d 930, 931 (5th Cir. 2005); Davis v. E. Baton Rouge 

Parish Sch. Bd., 78 F.3d 920, 925–26 (5th Cir. 1996). Deepwater Horizon I, II, 

and III each involved issues that—regardless of how they were decided—would 

unquestionably and substantially impact the judicially-managed

administrative framework. See Deepwater Horizon I, 732 F.3d at 332 n.3 (large

components of business economic loss framework affected); Deepwater Horizon 

III, 785 F.3d at 1009 (same); Deepwater Horizon II, 785 F.3d at 992–93 (all 

claims impacted). There is no comparable serious and unsettled question of law 

here.

Finally, effective appellate review of orders interpreting the settlement 

agreement can be had by other means. See Mohawk, 558 U.S. at 110–12; 

Digital Equip., 511 U.S. at 883. First, aggrieved parties in this situation might 

employ 28 U.S.C. § 1292(b), which permits discretionary interlocutory appeal 

from a district court order “involv[ing] a controlling question of law as to which 

there is substantial ground for difference of opinion.” The “discretionary appeal 

provision (allowing courts to consider the merits of individual claims) would 

seem a better vehicle for vindicating serious contractual interpretation claims 

than the blunt, categorical instrument of § 1291 collateral order appeal.” 

Digital Equip., 511 U.S. at 883 (citations omitted). Further, in extraordinary 

 

briefing, deference to the district court is even more appropriate. See 15A Charles A. Wright 

& Arthur R. Miller, Federal Practice and Procedure § 3911.5 (“[T]he considerations that cause 

appellate courts to confide in trial court discretion should affect the timing of appeal as well 

as the scope of review.”).

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cases, a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, is 

available to correct manifest injustices. See Cheney v. United States Dist. Court 

for D.C., 542 U.S. 367, 380 (2004).12 In light of the foregoing analysis, we are 

unpersuaded that the Orders here are appealable under § 1291.

B. § 1292(a)(1)

BP’s second proffered basis for appellate jurisdiction is 28 U.S.C. 

§ 1292(a)(1), which permits jurisdiction over appeals from “[i]nterlocutory 

orders . . . granting, continuing, modifying, refusing or dissolving injunctions.” 

Just as it has done with the collateral order doctrine, the Court has 

“approach[ed] this statute somewhat gingerly lest a floodgate be opened” that 

permits immediate appeal over too many nonfinal orders. Switz. Cheese Ass’n, 

Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24–25 (1966) (emphasizing a strong 

“congressional policy against piecemeal appeals”). 

A district court “grant[s]” an injunction when an action it takes is 

“directed to a party, enforceable by contempt, and designed to accord or protect 

some or all of the substantive relief sought in the complaint in more than a 

temporary fashion.” Police Ass’n of New Orleans Through Cannatella v. City of 

New Orleans, 100 F.3d 1159, 1166 (5th Cir. 1996) (internal quotation marks 

and citation omitted); 16 Charles A. Wright & Arthur R. Miller, Federal 

Practice and Procedure § 3922 (3d ed. 2014); see also Black’s Law Dictionary 

855 (9th ed. 2009) (defining injunction as a “court order commanding or 

preventing an action”). A district court “modif[ies]” an injunction when it 

“changes the obligations imposed by the injunction.” 16A Wright & Miller 

 

12 BP mentioned mandamus relief in passing in its reply brief. Even if it has waived 

this argument, “[t]his court has the discretion to treat an appeal as a petition for a writ of 

mandamus.” In re Grand Jury Subpoena, 190 F.3d 375, 389 n.16 (5th Cir. 1999). Failing to 

see an “exceptional circumstance[] amounting to a judicial usurpation of power or a clear 

abuse of discretion,” Cheney, 542 U.S. at 380 (internal quotation marks and citations 

omitted), we do not believe mandamus relief is appropriate here. 

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§ 3924.2. On the other hand, a court has not modified an injunction when it 

“simply implements an injunction according to its terms or [] designates 

procedures for enforcement without changing the command of the injunction.” 

Id. Interpretation, then, is not modification. See In re Seabulk Offshore Ltd., 

158 F.3d 897, 899 (5th Cir. 1998). This court takes a practical view of 

modification, “look[ing] beyond the terms used by the parties and the district 

court to the substance of the action.” Id.

In addition to showing that an order granted, modified, refused, or 

dissolved an injunction, a party challenging an interlocutory order must show 

“serious, perhaps irreparable, consequence[s],” because the § 1292(a)(1) 

“exception is a narrow one,” Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 

480 (1978) (internal quotation marks and citation omitted); see also Carson v. 

Am. Brands, Inc., 450 U.S. 79, 84 (1981).

BP asserts that the March 25 Order interpreting § 4.4.14 of the 

Settlement Agreement constituted an injunction. Alternatively, BP proposes 

that the district court’s approval of the settlement constituted an injunction, 

which was in turn modified by the March 25 Order and the subsequent denial 

of the motion for reconsideration. Class Counsel argue that neither the Orders 

nor the settlement approval provided injunctive relief, and alternatively that 

the Orders merely interpreted (rather than modified) any putative injunction.

Even assuming arguendo that the March 25 Order was an injunction or 

that the settlement approval order was an injunction modified by the Orders, 

BP has not shown “serious, perhaps irreparable, consequence[s].” Gardner, 437 

U.S. at 480. As articulated in our discussion on the collateral order doctrine, 

any harm here is adequately reparable through the multiple avenues BP has 

to pursue awards obtained fraudulently. See Sampson v. Murray, 415 U.S. 61, 

90 (1974) (“The possibility that adequate compensatory or other corrective 

relief will be available at a later date . . . weighs heavily against a claim of 

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irreparable harm.” (internal quotation marks and citation omitted)); Miss.

Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 629 (5th Cir. 

1985) (“[I]t is nevertheless settled that an injury is ‘irreparable’ only if it cannot 

be undone through monetary remedies.” (internal quotation marks, 

alterations, and citation omitted)). Further, there has been no showing, unlike 

in Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (Scalia, J., in 

chambers), on which BP relies, that a “substantial portion” of the fraudulent 

awards “will be irrevocably expended.”

III. CONCLUSION

We therefore DISMISS this appeal for lack of jurisdiction. 

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JENNIFER WALKER ELROD, Circuit Judge, dissenting:

The majority opinion is well-reasoned, and were we writing on a clean 

slate, I might be inclined to join it.1 Nevertheless, because I believe that 

Deepwater Horizon I, II, and III support a determination of jurisdiction under 

the collateral order doctrine, I respectfully dissent. The interlocutory order at 

issue here “conclusively determined the interpretation dispute, which is 

completely separate from the merits of BP’s liability for the oil spill,” In re 

Deepwater Horizon, 732 F.3d 326, 332 n.3 (5th Cir. 2013) (“Deepwater Horizon 

I”), and it will be effectively unreviewable on appeal because BP will have no 

practical way to recover on appeal from final judgment. See id.; In re 

Deepwater Horizon, 785 F.3d 986, 993 (5th Cir. 2015) (“Deepwater Horizon II”); 

In re Deepwater Horizon, 785 F.3d 1003, 1009 (5th Cir. 2015) (“Deepwater 

Horizon III”). In addition, the order at issue here will “affect the rest of the 

Settlement Program’s administration,” Deepwater Horizon II, 785 F.3d at 993, 

and in particular, BP’s ability to detect and appeal fraudulent awards.

BP has presented five examples of successful appeals in which access to 

pre-determination information was necessary, and these examples amount to 

$4 million in prevented fraud. In Deepwater Horizon III, we reviewed an 

 

1 In creating the collateral order doctrine, the Supreme Court interpreted 28 U.S.C. 

§ 1291—which confers appellate jurisdiction on the courts of appeals over only “final 

decisions” of federal district courts—to include a grant of authority to review certain orders 

traditionally considered non-final. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 

545–47 (1949). The Court recognized that this was a “practical rather than a technical 

construction” of § 1291. Id. at 546. Perhaps in part because of the doctrine’s tension with 

the text of § 1291 and § 1292 (which expressly grants appellate jurisdiction over specified 

interlocutory orders), the Court cautioned that the doctrine should be limited to “that small 

class” of decisions that involve “serious and unsettled question[s]” and “which finally 

determine claims of right separable from, and collateral to, rights asserted in the action, too 

important to be denied review and too independent of the cause itself to require that appellate 

consideration be deferred until the whole case is adjudicated.” Id. at 546, 547 (emphasis 

added).

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interlocutory order denying discretionary review of three individual awards to 

non-profits with disputed amounts totaling only about $1.2 million. 785 F.3d 

at 1007; see also ante, at 11 n.7. Despite the relatively small number of awards 

and amount in controversy, we recognized that the order had implications for 

the calculation of awards made to other non-profits. Id. at 1009. A similar 

inference is appropriate here. Because, as BP explains, the district court’s 

order here impacts BP’s ability to determine whether awards comply with the 

Settlement Agreement’s award criteria, under our precedent, the order 

involves a question sufficiently important to trigger jurisdiction under the 

collateral order doctrine. See id. (determining jurisdiction under the collateral 

order doctrine and recognizing that the doctrine is limited to orders that 

“resolve an important issue completely separate from the merits” (emphasis 

added) (internal quotation marks omitted)). Moreover, the reasons for 

determining that we have jurisdiction are even stronger here than in 

Deepwater Horizon III. In this case, we deal not with potentially miscalculated 

awards, but rather with potentially fraudulent ones that should not have been 

awarded at all.

 Therefore, I would determine that we have jurisdiction over this appeal 

under the collateral order doctrine and reach the merits. On the merits, I 

would reverse the judgment of the district court because it conflates the terms

“Claims-related data” and “Claim Files” in § 4.4.14 of the Settlement 

Agreement. I respectfully dissent.

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