The Fifth Circuit Court of Appeals ruled it is able to review individual claim determinations appealed by BP and claimants in the Deepwater Horizon Economic Claims Center. Previously, the last line of discretionary review resided with Judge Carl Barbier, who has done a great job in handling the MDL. He has received high marks from all independent observers.

BP appealed the Final Rules Governing Discretionary Court Review of Appeal Determinations approved by Judge Barbier which provided the appellate guidelines for individual claim determinations issued by an Appeal Panel. The Settlement Agreement delegates authority to Appeal Panelists to review appeal requests of final determinations issued by the Deepwater Horizon Economic Claims Center. BP challenged “the Final Rules for not providing for the docketing of requests, which it argues comprises a right to appeal from the district court to [the Fifth Circuit] and violates Federal Rule of Civil Procedure 79’s provisions regarding the clerk’s maintenance of the civil docket.”

The Fifth Circuit held the Final Rules violated FRCP 79 by failing to contain proper docketing provisions for a potential appeal to the Court. It also reasoned that “where a settlement agreement does not resolve claims itself but instead establishes a mechanism pursuant to which the district court will resolve claims, parties must expressly waive what is otherwise a right to appeal from claim determination decisions by a district court.” The Court determined that no such waiver existed in the Deepwater Horizon Economic & Property Damages Settlement, so the parties preserved their right to appeal from the district court.

While the Settlement Agreement does allow each side to appeal a determination, BP has continually raised certain arguments on appeal that have been precluded by Judge Barbier. One such argument is alternative causation, wherein BP claims there is an additional causation requirement despite the Settlement Agreement and previous BP correspondences confirming no such requirement exists. Even though the Fifth Circuit order upheld Judge Barbier’s preclusion of this argument, BP continues to assert it throughout the appeals process. Our hope is that BP won’t continue to abuse the appeals process by continuing in this manner. But what can you expect from a company that has constantly sought to backtrack on its obligations.


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