IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30190

Summary Calendar

CLAIMANT ID 100028922, 

 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. 2:17-CV-690

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

This case comes to us from the Deepwater Horizon Economic & Property 

Damages Settlement Agreement (Settlement Agreement). Claimant sought 

recovery under the Settlement Agreement, but the Claims Administrator 

denied the claim. The Appeal Panel upheld the denial. Claimant then sought 

discretionary review in the Eastern District of Louisiana, but the district court 

 

* 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
No. 17-30190

2

denied review. Claimant has appealed that denial. Because the district court 

acted within its discretion when it declined to review Claimant’s case, we

affirm.

I

Since July 2008, Claimant has operated an extended-stay motel in 

Beaumont, Texas. Four years after the Deepwater Horizon oil spill, Claimant 

filed a Business Economic Loss Claim to the Court Supervised Settlement 

Program (Program) under the Settlement Agreement. Claimant sought 

recovery for spill-related business economic losses. 

Under Exhibit B of the Settlement Agreement, a claimant may recover 

only for spill-related losses. Depending on a claimant’s location, Exhibit 4B 

requires that certain claimants satisfy any one of three possible revenue tests: 

the v-shaped revenue test, the modified v-shaped revenue test, or the declineonly revenue test. Because of its location, Claimant had to satisfy one of these 

tests.

Each revenue test, at a minimum, compares the claimant’s revenue 

during a pre-spill Benchmark Period to the claimant’s revenue during 

particular post-spill periods. The claimant can satisfy either v-shaped revenue

test by showing that its post-spill revenue decline and subsequent recovery 

followed one of two v-shaped patterns. If a claimant fails both v-shaped tests, 

it might still satisfy the decline-only test. That test requires demonstrating: 

(1) a post-spill revenue decrease of 15% or more compared to the Benchmark 

Period; (2) that factors outside a claimant’s control prevented revenue recovery 

in 2011; and (3) that the claimant lost certain kinds of customers after the spill.

On initial review, the Claims Administrator determined that Claimant 

failed all three revenue tests and denied the claim. Claimant failed both 

v-shaped revenue tests, no matter which Benchmark Period it used. 
No. 17-30190

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Claimant also failed the decline-only test. Program accountants used 

the 2008–2009 Benchmark Period to find that Claimant satisfied the test’s first 

step. They also concluded Claimant would not have satisfied the first step

using the 2009-only Benchmark Period. Claimant did not, however, satisfy the 

test’s second step, because it could not identify factors beyond its control that 

prevented revenue recovery in 2011. The accountants documented these 

results in the Accountant Calculation Schedules’ Causation Results section, 

which Claimant could access. Concluding that Claimant failed all three 

possible revenue tests, the Claims Administrator denied the claim.

Claimant next sought re-review. During that process, Program

accountants discovered a mistake in their earlier calculations. They found that 

Claimant could not use 2008 in its Benchmark Period. A claimant may include 

a particular year in the Benchmark Period only if the claimant operated its 

business for six months or more during that year. But Claimant provided

accounting statements for only five months of 2008—August through 

December. When Program accountants asked Claimant for pre-August 2008 

operating history, Claimant explained that it had no pre-August 2008 

statements because August was its first full month of business. Accordingly, 

the accountants determined that the 2009-only Benchmark Period was the 

only eligible period. The accountants explained—both in a new note to the 

supporting schedules (Note 10) and on the Calculation Summary—that the 

2008–2009 Benchmark Period was unavailable. Without the 2008–2009

Benchmark Period, Claimant no longer satisfied step one of the decline-only

revenue test. The accountants failed to update the Causation Results section—

it continued (erroneously) to conclude that Claimant satisfied the first step of 

the decline-only test and failed the second. After re-review, the Claims 

Administrator maintained that Claimant could not satisfy any of Exhibit 4B’s 

revenue tests and denied the claim.
No. 17-30190

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Following re-review, Claimant asked for reconsideration. Claimant’s 

arguments during reconsideration focused only on the decline-only test’s 

second step. Claimant provided no pre-August 2008 operating history and did 

not dispute that the 2008–2009 Benchmark Period was unavailable. 

Accordingly, the accountants continued to note that, without more 

documentation from Claimant, the 2008–2009 Benchmark Period remained 

unavailable. Again, they failed to update the Causation Results section to 

reflect that Claimant now failed—instead of passed—step one of the 

decline-only test. The Claims Administrator denied the claim after 

reconsideration.

Claimant brought the claim to the Appeal Panel. The Appeal Panel 

focused at first on the decline-only test’s third step, and it asked the Claims 

Administrator to explain how Claimant had failed that step. In its Summary 

of Review, the Claims Administrator told the Appeal Panel that Program

accountants did not analyze step three of the decline-only test because 

Claimant had so clearly failed step one. Satisfied with this explanation, the 

Appeal Panel denied the claim. The Appeal Panel regretted that the Program

didn’t better communicate to Claimant why it failed Exhibit 4B’s causation 

requirements. But the Appeal Panel concluded that the Program’s imperfect 

communication was also harmless because Claimant failed all revenue 

causation tests under the 2009-only Benchmark Period, the only period it was 

entitled to use.

After the Appeal Panel’s decision, Claimant petitioned for discretionary 

review in the Eastern District of Louisiana, and the district court declined to 

review the appeal. Claimant now appeals the district court’s decision.
No. 17-30190

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II

The district court has discretion to deny review of the Appeal Panel’s 

decision, and we review the district court’s decision for abuse of discretion.1

While we have not defined the exact limits of a district court’s discretion 

to deny review,2 we have said that a district court abuses its discretion when 

it denies review and one of the following factors exist: (1) the request for review 

raises an issue that has split the Appeal Panels and would substantially 

impact the Settlement Agreement’s administration once resolved;3 (2) the 

dispute concerns a pressing question about how to interpret the Settlement 

Agreement’s rules;4 or (3) the Appeal Panel misapplied or contradicted the 

Settlement Agreement, or had the clear potential to do so.5

We have also been careful not to transform discretionary review into 

mandatory review.6 Accordingly, the district court need not review a claim 

that raises a non-pressing Settlement Agreement interpretation issue7 or 

merely challenges “the correctness of a discretionary administrative decision 

in the facts of a single claimant’s case.”8

 

1 Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017)

(per curiam). 2 See id.

3 Id. 4 Id.

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

6 See, e.g., Claimant ID 100212278, 848 F.3d at 410; In re Deepwater Horizon, 785 

F.3d 986, 999 (5th Cir. 2015) (“We do not intend any part of this opinion to turn the district 

court's discretionary review into a mandatory review. To do so would frustrate the clear 

purpose of the Settlement Agreement to curtail litigation.”).

7 Holmes Motors, Inc., 829 F.3d at 316.

8 Claimant ID 100212278, 848 F.3d at 410 (quoting In re Deepwater Horizon (Sexton), 

641 F. App’x 405, 410 (5th Cir. 2016) (per curiam)).
No. 17-30190

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III

The district court did not abuse its discretion when it declined to review 

the Appeal Panel’s decision, because Claimant has not shown that any of the 

abuse-of-discretion factors are present.

A

First, Claimant’s request for review does not raise an issue that has split 

the Appeal Panel and that would, once resolved, substantially impact the 

administration of the Settlement Agreement.

According to Claimant, the Appeal Panel split from two past Appeal 

Panel interpretations of the Settlement Agreement when it declined to remand 

the case back to the Claims Administrator. But the purported split doesn’t 

exist, because the decisions that Claimant cites turn only on their facts.

In those decisions, the Claims Administrator had found that the 

claimants’ documentation did not satisfy Exhibit 4B. In both cases, the Appeal 

Panel remanded the case to the Claims Administrator. In one case, the Appeal 

Panel decided to remand because the Claims Administrator never gave 

claimant notice about the specific documentation that the claimant lacked. 

The Appeal Panel chose to remand the other case because the Claims 

Administrator never gave the claimant a chance to provide the necessary 

documentation. 

But in this case, the Program notified Claimant more than once about 

the documentation deficiency, and it gave Claimant several opportunities to 

provide the missing documentation. Claimant’s first notice and opportunity to 

respond came nine months before the final Appeal Panel decision when the 

Program asked Claimant for evidence of pre-August 2008 operations. 

Claimant’s attorney responded, explaining that pre-August 2008 operating 

history was unavailable. Claimant received additional notice and more 

opportunities to respond during the re-review and reconsideration process. 
No. 17-30190

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During both re-review and reconsideration, the Program’s supporting 

documents (which Claimant could access) explained that the 2008–2009 

Benchmark Period remained ineligible without pre-August 2008 operating 

history. There is no split: the Appeal Panels reached different decisions 

because they faced different facts.

Claimant’s alleged split would also not concern an issue that 

“substantially impact[s] the administration of the Agreement.”9 Because 

review is discretionary, district courts are not required to review every 

potential Appeal Panel disagreement. Only those splits that would 

substantially impact the Settlement Agreement’s administration merit 

review.10 Claimant has not identified a split over a question so impactful that 

a district court must review it.

B

This dispute does not concern a pressing question about how to interpret 

the Settlement Agreement’s rules.

The parties disagree about facts, not Settlement Agreement 

interpretation. Neither party disputes which Settlement Agreement rules 

apply or what the rules provide. In fact, both parties agree that the Settlement 

Agreement requires that Claims Administrators provide claimants with notice 

and opportunities to be heard. Instead, Claimant and BP disagree about 

whether the Program gave Claimant (1) notice that the 2008–2009 Benchmark 

Period was ineligible and (2) an opportunity to respond. Those are not

questions about how the Settlement Agreement should be interpreted or 

implemented, they are questions about what happened during the process.

 

9 Claimant ID 100212278, 848 F.3d at 410 (quoting In re Deepwater Horizon (Smith), 

632 F. App’x. 199, 203-04 (5th Cir. 2015) (per curiam)). 10 See Claimant ID 100212278, 848 F.3d at 410.
No. 17-30190

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Even if the Appeal Panel had interpreted the Settlement Agreement’s 

notice requirements, that still would not present a pressing interpretive 

question. We do not ask district courts to review every claim that poses an 

interpretive issue. We require review only when the Appeal Panel’s decision 

involves a non-isolated or substantial error of interpretation.11 This Appeal 

Panel decision does not contain a non-isolated or substantial error of 

interpretation.

C

Finally, the Appeal Panel’s decision did not misapply or contradict the 

Settlement Agreement, nor did it have the clear potential to do so.

We consider not whether there is a disagreement about what the 

Settlement Agreement means, but instead whether the Appeal Panel erred in 

applying it. Nor do we ask district courts to consider every claim that involves 

a possible misapplication or contradiction. We instead require review only if 

the Appeal Panel’s decision was “incongruent with the language of the 

Settlement Agreement.”12 We cannot say that the Appeal Panel acted 

incongruently with the Settlement Agreement when it concluded that 

Claimant received all the notice that the Settlement Agreement requires.

* * *

Claimant’s request for review raises none of the abuse-of-discretion 

factors. Thus, the district court acted within its discretion when it denied 

Claimant’s request. On that basis, we AFFIRM the district court’s decision.

 

11 See id. 12 Claimant ID 100250022 v. BP Expl. & Prod., Inc., 847 F.3d 167, 170 (5th Cir. 2017)

(per curiam).