ID 100212278 v. BP Exploration & Prodn, I , 848 F.3d 407 ( 2017 )


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  •      Case: 16-30102   Document: 00513869961    Page: 1   Date Filed: 02/09/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT     United States Court of Appeals
    Fifth Circuit
    FILED
    February 9, 2017
    No. 16-30102
    Lyle W. Cayce
    Clerk
    Consolidated with Cases 16-30117, 16-30598, 16-30599 and 16-30606
    CLAIMANT ID 100212278,
    Requesting Party – Appellant,
    v.
    BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
    PRODUCTION COMPANY; BP, P.L.C.,
    Objecting Parties – Appellees.
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
    PER CURIAM:
    The appellant is a company that filed Business Economic Loss claims
    under the Deepwater Horizon Economic and Property Damages Settlement
    Agreement on behalf of five of its stores. Each claim was denied by the Court
    Supervised Settlement Program, and each denial was affirmed by an Appeal
    Panel. The company sought review by the district court, which the district
    court denied in every case.      In this consolidated appeal, the company
    challenges the district court’s denial of discretionary review in each case.
    Because the district court did not abuse its discretion, we AFFIRM.
    Case: 16-30102       Document: 00513869961          Page: 2     Date Filed: 02/09/2017
    No. 16-30102
    I.
    This case involves BP’s obligations under the Deepwater Horizon
    Economic and Property Damages Settlement Agreement.                          The appellant,
    which describes itself in its briefing as an automotive parts provider, sought to
    obtain compensation under the Settlement Agreement as a tourism business. 1
    Designation as a tourism business would have relieved the appellant of the
    need to demonstrate loss causation.                  However, the Court Supervised
    Settlement Program (CSSP) and the Appeal Panel determined that the stores
    were not tourism businesses and denied the claims for failure to satisfy the
    causation requirement.
    Exhibit 2 to the Settlement Agreement defines tourism as follows:
    Tourism means businesses which provide services such as
    attracting, transporting, accommodating or catering to the needs
    or wants of persons traveling to, or staying in, places outside their
    home community. Therefore, if you are in one of the following
    businesses or work for such a business, you are in the Tourism
    Industry.
    Exhibit 2 then lists forty-one North American Industry Classification System
    codes (NAICS codes) identifying various categories of businesses that qualify
    as tourism businesses.
    The appellant claimed that it fell under NAICS code 452990 (All Other
    General Merchandise Stores), which is listed in Exhibit 2. It also argued, in
    the alternative, that it was a business “accommodating or catering to the needs
    1  Under the Settlement Agreement, claims are initially submitted to the Court
    Supervised Settlement Program, which is overseen and managed by the Claims
    Administrator. In re Deepwater Horizon, 
    785 F.3d 986
    , 989 (5th Cir. 2015). A decision by
    the Court Supervised Settlement Program may be appealed to an Appeal Panel. 
    Id. Although the
    Settlement Agreement does not establish a right of automatic appeal to the
    district court, the district court that authorized the settlement has retained the discretionary
    right to review decisions by Appeal Panels. 
    Id. at 989–90.
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    No. 16-30102
    or wants of persons traveling to, or staying in, places outside their home
    community.” It claimed to be a tourism business on these grounds.
    Under the Settlement Agreement, the appropriate NAICS code for a
    claimant is to be determined based on review of: “(a) the NAICS code shown on
    an Entity Claimant’s 2010 tax return, (b) 2010 business permits or license(s),
    and/or (c) other evidence of the Entity’s activities necessary for the Settlement
    Program to determine the appropriate NAICS code.” Claims Administrator
    Final Policy 480 v.2 clarifies that the “appropriate” NAICS Code for an entity
    shall be the one that “most accurately describes [its] primary business
    activities” during the relevant time frame.
    Claims Administrator Final Policy 289 v.2 further discusses the
    designation of a claimant as a tourism business.          It states the Claims
    Administrator’s finding that Exhibit 2’s list of NAICS codes is illustrative, not
    exhaustive. Based on this finding, it states that a claimant without one of the
    NAICS codes listed in Exhibit 2 may be considered a tourism business “if the
    Claims Administrator determines in his discretion” and “based on the totality
    of the circumstances” that it “provide[s] services such as attracting,
    transporting, accommodating or catering to the needs or wants of persons
    traveling to, or staying in, places outside their home community.” Finally,
    Policy 289 v.2 provides that when a claimant submits separate claims for
    separate facilities, as in this case, the Claims Administrator “will evaluate
    each facility separately to determine whether it meets the definition of
    Tourism . . ., notwithstanding what NAICS code may have been assigned to
    the Entity as a whole.”
    The CSSP determined that the stores were not tourism businesses and
    that the appropriate NAICS code for each of the stores was 441310 (Automotive
    Parts and Accessories Stores), a code not listed in Exhibit 2. The Appeal Panel
    affirmed the CSSP determination for each store. In the first of its opinions,
    3
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    No. 16-30102
    the Appeal Panel noted that the store in question advertised itself as an auto-
    parts store and that it did not fit the NAICS definition of “All Other General
    Merchandise Stores” because its auto parts line of products predominated over
    other product lines. It also explained that the store had not established with
    concrete evidence that it was engaged in the business of “accommodating or
    catering to the needs or wants of persons traveling to, or staying in, places
    outside their home community.” According to the Appeal Panel, the claimant’s
    observation that its website included a list of products that drivers should
    inspect and consider replacing before a long trip was insufficient to qualify it
    for designation as a tourist business. This was particularly true since the store
    was not located in a tourist area and the possibility of occasional tourists
    stopping by the store for auto parts was “far too incidental.” Based on this
    same reasoning, the Appeal Panel went on to affirm the denial of each store’s
    claim. The stores appealed the decisions of the Appeal Panel to the district
    court, which denied discretionary review. The stores then appealed to this
    court.
    II.
    We review the district court’s denial of discretionary review for abuse of
    discretion. Holmes Motors, Inc. v. BP Exploration & Prod., 
    829 F.3d 313
    , 315
    (5th Cir. 2016). We generally assess whether the district court abused its
    discretion by looking to “whether the decision not reviewed by the district court
    actually contradicted or misapplied the Settlement Agreement, or had the clear
    potential to contradict or misapply the Settlement Agreement.” 
    Id. However, we
    have been careful to note that it is “wrong to suggest that the district court
    must grant review of all claims that raise a question about the proper
    interpretation of the Settlement Agreement.”          
    Id. at 316;
    see also 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
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    No. 16-30102
    mandatory review.          To do so would frustrate the clear purpose of the
    Settlement Agreement to curtail litigation.”). It is not an abuse of discretion
    to deny a request for review that “involve[s] no pressing question of how the
    Settlement Agreement should be interpreted or implemented, but simply
    raise[s] the correctness of a discretionary administrative decision in the facts
    of a single claimant’s case.” In re Deepwater Horizon, 641 F. App’x 405, 410
    (5th Cir. 2016). It may be an abuse of discretion to deny a request for review
    that raises a recurring issue on which the Appeal Panels are split if “the
    resolution of the question will substantially impact the administration of the
    Agreement.” In re Deepwater Horizon, 632 F. App’x 199, 203–04 (5th Cir.
    2015).
    III.
    The appellant has not attempted to show on appeal that the district court
    abused its discretion or that its request for review raised an important,
    recurring issue on which the Appeal Panels are split. Instead, it argues for de
    novo review and repeats substantially the same arguments it made before the
    CSSP and Appeal Panel. According to the appellant, the district court’s denial
    of its request for review constitutes an interpretation of the Settlement
    Agreement, which is a question of contract law subject to de novo review.
    However, the appellant does not challenge the Appeal Panel’s interpretation of
    the Settlement Agreement. 2 Rather, it disputes the Appeal Panel’s factual
    2 BP has raised one question of interpretation in an alternative argument that we
    need not reach. It argues that, even if the stores were engaged in “accommodating or catering
    to the needs or wants of [tourists],” that is not sufficient to make them tourism businesses.
    According to BP, the NAICS codes listed in Exhibit 2 constitute an exhaustive list of tourism
    businesses, and Policy 289 v.2 impermissibly modified the terms of the Settlement
    Agreement by interpreting the list to be merely illustrative of a larger category of businesses
    “accommodating or catering to the needs or wants of [tourists].” Because the Appeal Panel
    determined that the stores were not businesses accommodating or catering to the needs or
    wants of tourists and did not abuse its discretion in doing so, we need not determine whether
    Exhibit 2’s list of NAICS codes is exhaustive.
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    determination that its stores were not tourism businesses within the meaning
    of the Settlement Agreement.        We do not review de novo whether this
    determination was correct. Claimant ID 100250022 v. BP Exploration & Prod.,
    No. 16-30258, slip op. at 5 (5th Cir. Jan. 25, 2017). Instead, we ask whether it
    constitutes an abuse of discretion. 
    Id. The stores’
    evidence that they were engaged in “accommodating or
    catering to the needs or wants of persons traveling to, or staying in, places
    outside their home community” does not demonstrate that the Appeal Panel
    abused its discretion in determining otherwise. They rely on two pieces of
    evidence. First, the appellant’s website displays a list of automotive products
    that drivers should consider replacing before long trips. Second, the stores
    carry storage and cargo equipment primarily used by vacationers. BP contends
    that the Appeal Panel correctly determined there was insufficient concrete
    evidence to show that any of the specific stores in question qualified as a
    tourism business. In particular, none of the stores offers evidence regarding
    its actual sales of cargo equipment or sales of products on the website’s list and
    none offers evidence of sales to non-local customers as contemplated by the
    Settlement Agreement. The Appeal Panel expressly considered the possibility
    that although the stores were not located in tourist areas, they might
    incidentally serve some tourists while pursuing their primary business as
    sellers of automotive parts and accessories. Notwithstanding this possibility,
    it determined that the totality of the circumstances did not show the stores to
    be tourism businesses. The stores have not shown that this was an abuse of
    discretion.
    The stores’ alternative argument that they should have been classified
    under NAICS code 452990 (All Other General Merchandise Stores) rather than
    NAICS code 441310 (Automotive Parts and Accessories Stores) also fails to
    show an abuse of discretion. The appellant does not dispute that its stores
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    advertised themselves as auto-parts stores. The Appeal Panel determined that
    the stores did not fit the NAICS definition of “All Other General Merchandise
    Stores” because their auto parts line of products predominated over other
    product lines. Moreover, the Settlement Agreement directs that “the NAICS
    code shown on an Entity Claimant’s 2010 tax return” should be considered in
    determining the appropriate NAICS code, and the appellant used code 441310
    on its 2010 tax return. 3 The appellant itself has stated on appeal that it is an
    automotive parts provider. Thus, it was not an abuse of discretion to classify
    the stores under NAICS code 441310 as automotive parts and accessories
    stores.
    IV.
    Because the district court’s denial of discretionary review does not
    constitute an abuse of discretion, we AFFIRM.
    3The appellant notes that this factor is not conclusive under Policy 480 v.2 but does
    not explain why any of its stores ought to have a different NAICS code than the one on the
    company’s tax return.
    7
    

Document Info

Docket Number: 16-30606

Citation Numbers: 848 F.3d 407

Filed Date: 2/9/2017

Precedential Status: Precedential

Modified Date: 1/12/2023