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Abbott v. BP Exploration & Production, Inc.

United States Court of Appeals, Fifth Circuit

March 14, 2017


         Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.

          HAYNES, Circuit Judge.

         Plaintiffs Kenneth Abbott and Food & Water Watch, Incorporated appeal the district court's grant of summary judgment on all claims in favor of Defendants BP Exploration & Production, Inc., BP America, Inc., BP p.l.c., and BP Products North America Inc. (collectively, "BP"). We AFFIRM.

         I. Background

         This appeal centers on the regulatory process through which BP built and maintained the Atlantis Platform, a semi-submersible floating oil production facility located in the Gulf of Mexico. Plaintiff Keith Abbott worked for BP in the Atlantis administrative offices from August 2008 to February 2009. During his employment, Abbott came to believe that BP did not have all of the necessary documentation for the Atlantis and that many of the Atlantis documents that BP did have were not approved by engineers as required by applicable regulations.

         On or about April 9, 2009, Abbott filed a written submission to the United States Attorney General and the United States Attorney for the Southern District of Texas detailing his concerns with BP's Atlantis documentation. Abbott subsequently filed, under seal, a complaint pursuant to 31 U.S.C. § 3730(b)(2) of the False Claims Act ("FCA") on April 21, 2009, claiming, inter alia, that BP falsely certified compliance with various regulatory requirements. As a result of his lawsuit, the Department of the Interior ("DOI") began reviewing BP's compliance with those regulatory requirements in May 2009. DOI also received inquiries from members of Congress about the Atlantis in the wake of testimony, including that of Abbott, before the Natural Resources Subcommittee on National Parks, Forests, and Public Lands in June 2009. By March 2010, DOI indicated to Congress that DOI would conduct a full investigation.

         On September 10, 2010, while the DOI was investigating the Atlantis, Abbott amended his complaint to both add Food & Water Watch, Incorporated as a plaintiff and include additional claims for violations of the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq. The amended complaint contained a section titled "Publicly Available Information, " in which Abbott included new evidence concerning the specific language of the certifications made by BP, pursuant to 30 C.F.R. §§ 250.802(e)(5) (2005) and 250.901(d) (2002), to the DOI. BP filed a motion to dismiss in response to this amended complaint, to which the United States of America ("Government") filed a statement of interest that took no position on the validity or sufficiency of Plaintiffs' amended complaint.[1]

         DOI's investigation culminated in a 2011 report ("DOI Report") that concluded that "Abbott's allegations that Atlantis operations personnel lacked access to critical, engineer-approved drawings are without merit, " and that "Abbott's allegations about false submissions by BP to [DOI] are unfounded." The DOI Report also "found no grounds for suspending the operations of the Atlantis . . . or revoking BP's designation as an operator . . . ."

         Shortly after the DOI issued its report, the district court denied BP's motion to dismiss. During discovery, Food & Water Watch, Incorporated identified three donors whom they alleged could be injured by an oil spill due to the allegedly false Atlantis certifications. These donors were Allen Estay, a shrimp business operator located off the Gulf in Louisiana, Nancy James, a resident along the Gulf in Florida, and Donna Boland, a California resident who owns a rental property near the Gulf in Texas. Abbott also stated that he regularly visited the Gulf, and would be damaged if an oil spill resulted from the allegedly incorrect certifications. Following discovery, the parties filed motions for summary judgment. The district court ultimately granted summary judgment in favor of BP on all claims. This appeal followed.

         II. Standard of Review

         Motions for summary judgment are reviewed de novo. United States ex rel. Babalola v. Sharma, 746 F.3d 157, 160 (5th Cir.), cert. denied, 134 S.Ct. 2856 (2014). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). We view the evidence on the record "in the light most favorable to the non-moving party." United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011) (citing United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006)).

         III. Discussion

         In order to survive BP's motion for summary judgment, Plaintiffs must create a dispute of material fact as to the following four elements of an FCA claim: "(1) whether there was a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to pay out money or to forfeit moneys due (i.e., that involved a claim)." United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009) (citation omitted).[2] "The term 'material' means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property." Universal Health Servs., Inc. v. United States ex rel. ...

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