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.
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                                               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, 

, 989 (5th Cir. 2015). A decision by
the Court Supervised Settlement Program may be appealed to an Appeal Panel. 

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. 

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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,
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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., 

, 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.” 

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.”          

see also In re
Deepwater Horizon, 

, 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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                                  No. 16-30102
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. 

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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                                      No. 16-30102
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.
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