Vigil v. Fed. Emergency Mgmt. Agency

• Docket Number: CIV 23-0941 JB/JFR
• Decision Date: 23 May 2024
• Parties: MARY VIGIL; FRANK VIGIL; MARTIN SANDOVAL and PATRICK GRIEGO, Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY; DEPARTMENT OF HOMELAND SECURITY; NATIONAL RESOURCES CONSERVATION SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE and ANGELA GLADWELL, in her official capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

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MARY VIGIL; FRANK VIGIL; MARTIN SANDOVAL and PATRICK GRIEGO, Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY; DEPARTMENT OF HOMELAND SECURITY; NATIONAL RESOURCES CONSERVATION SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE and ANGELA GLADWELL, in her official capacity, Defendants.

No. CIV 23-0941 JB/JFR

United States District Court, D. New Mexico

May 23, 2024

Bill Robbins Robbins Cloud LLP Santa Monica, California and Antonia Roybal-Mack Darren Cordova Roybal-Mack & Cordova P.C. Albuquerque, New Mexico and Christopher P. Bauman Mark Dow Cynthia L. Weisman Bauman & Dow, P.C. Albuquerque New Mexico Attorneys for the Plaintiffs

Alexander M. M. Uballez United States Attorney Nicholas M Sydow Robert D. Ortega Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiffs' Application for Entry of Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction, filed November 3, 2023 (Doc. 8)(“TRO Motion”). The Court held a hearing on November 6, 2023. See Clerk's Minutes, filed November 6, 2023 (Doc. 22). The primary issues are: (i) whether the Court has jurisdiction to enter, pursuant to rule 65 of the Federal Rules of Civil Procedure, a temporary restraining order (“TRO”) enjoining the Defendants from inappropriately communicating with legally represented victims of the 2022 Hermit's Peak/Calf Canyon Fire (“Hermit's Peak Fire”) about potential settlements under the Hermit's Peak/Calf Canyon Fire Assistance Act, Pub. L. 117-180, 136 Stat. 2168 (2022)(“HPCCAA”), because: (a) the Plaintiffs have standing; (b) the United States has waived its sovereign immunity for the Plaintiffs' claims; and (c) the Plaintiffs have invoked properly the Court's federal-question jurisdiction under 28 U.S.C. § 1331; and (ii) whether the Court should enter a TRO, because: (a) the Plaintiffs are likely to succeed on the merits of their claims that the Defendants, by instructing their employees to improperly contact represented Hermit's Peak Fire victims without the victims' counsel present, are violating the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”), 28 U.S.C. § 530B (“McDade Act”), and the New Mexico Rules of Professional Conduct (“NMRPC”); (b) the Plaintiffs are likely to suffer irreparable harm absent a TRO; and (c) the balance of the equities weighs in the Plaintiffs' favor and a TRO would be in the public's interest. The Court first concludes that it has jurisdiction to reach the merits of the Plaintiffs' claims, because: (i) the Plaintiffs have standing; (ii) the APA sufficiently waives the United States' sovereign immunity for the Plaintiffs' claims; and (iii) 28 U.S.C. § 1331 provides for the Court's jurisdiction over the Plaintiffs' non-APA claims. On the merits, the Court concludes that the Plaintiffs are not entitled to a TRO, because: (i) the Plaintiffs' failure to identify a viable cause of action and the fact that their allegations are, regardless, legally insufficient to state claims upon which relief can be granted, mean the Plaintiffs are not likely to succeed on the merits; (ii) the Plaintiffs are not likely to suffer irreparable harm; and (iii) the balance of the equities favors the Defendants, and a TRO would be contrary to the public's interest. Accordingly, the Court denies the Plaintiffs' request for a TRO.

FINDINGS OF FACT

“A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success.” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1179 (D.N.M. 2011)(Browning, J.). Rule 52 of the Federal Rules of Civil Procedure states: “In granting or refusing an interlocutory injunction, the court must . . . state the findings and conclusions that support its action.” Fed.R.Civ.P. 52(a)(2). “‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.'” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1179 (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009))(alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)(“[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.”). Moreover, “[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Accordingly, while the Court does the best it can to make accurate findings from the record before it, these findings of fact are relevant only for the purpose of determining whether to issue a TRO, and do not bind the Court or the parties at trial. See Kottke Cattle, LLC v. Zia Agric. Consulting, LLC, No. CIV 21-1004, 2021 WL 4894197, at *1 (D.N.M. October 20, 2021)(Browning, J.). The Court finds as follows:

1. The Hermit's Peak Fire and the HPCCAA.

1. The Hermit's Peak Fire began on April 6, 2022, when a United States Forest Service (“USFS”)-prescribed burn in San Miguel County, New Mexico exceeded the USFS' containment capabilities and began to spread uncontrollably. See HPCCAA § 102(a)(1)-(5).

2. On April 22, 2022, the Hermit's Peak Fire merged with the nearby Calf Canyon Fire. See Bill Gabbert, Investigators Determine Calf Canyon Fire Caused by Holdover From Prescribed Fire, Wildfire Today (May 28, 2022).

3. By the time it was extinguished, the Hermit's Peak Fire had scorched more than 341,000 acres of land -- making it the largest wildfire in New Mexico history -- and burned down 220 structures. See Deon J. Hampton, A Way of Life is All but Extinguished by New Mexico's Largest Wildfire, NBC News (March 26, 2023); HPCCAA § 102(a)(9) (“[T]he fire resulted in the loss of Federal, State, local, Tribal, and private property.”).

4. The USFS “has assumed responsibility” for the Hermit's Peak Fire. HPCCAA § 102(a)(8).

5. On September 30, 2022, Congress passed the HPCCAA to “compensate victims . . . for injuries resulting from the fire and to provide for the expeditious consideration and settlement of claims for those injuries.” HPCCAA § 102(b).

6. The HPCCAA provides that “[e]ach injured person shall be eligible to receive from the United States compensation for injury suffered by the injured person as a result of the Hermit's Peak/Calf Canyon Fire ” HPCCAA § 104(a).

7. The HPCCAA is largely modeled on the Cerro Grande Fire Assistance Act, Pub. L. 106-246 (2001)(“CGFAA”), which “required FEMA to design and administer a program to fully compensate those who suffered injuries resulting from the Cerro Grande Fire.”^[1]Hermit's Peak/Calf Canyon Fire Assistance, 88 Fed.Reg. 59730, 59730 n.1 (“Final Rule”)(“FEMA's procedures in the IFR were generally consistent with those established for claims associated with the Cerro Grande Fire Assistance Act.”).

8. The HPCCAA contains a section entitled “Election of Remedy,” which provides that “[a]n injured person may elect to seek compensation from the United States . . . by”: (i) “submitting a claim under this Act”; (ii) “filing a claim or bringing a civil action under chapter 171 of title 28, United States Code (commonly known as the ‘Federal Tort Claims Act')”; or (iii) “bringing an authorized civil action under any other provision of law.” HPCCAA § 104(h)(1)(A)-(C).

9. Upon acceptance of an award under any of the three options outlined in § 104(h)(1), a claimant's election of remedy is “final and conclusive on the claimant with respect to all injuries resulting from the Hermit's Peak/Calf Canyon Fire ....” HPCCAA § 104(h)(2). See Final Rule at 59741 (“[T]he Act provides that an injured person who accepts an award under the Act waives the right to pursue any claims arising out of or relating to the same subject matter under the Federal Tort Claims Act (FTCA) or a civil lawsuit.”).

10. The HPCCAA further provides:

The acceptance by a claimant of any payment under this Act . . . shall . . . be final and conclusive on the claimant, with respect to all claims arising out of or relating to the same subject matter . . . and . . . constitute a complete release of all claims against the United States (including any agency or employee of the United States) under chapter 171 of title 28, United States Code (commonly known as the “Federal Tort Claims Act”), or any other Federal or State law, arising out of or relating to the same subject matter.

HPCCAA § 104(e)(1)-(2).

11. Because the HPCCAA provides that a claimant's election of remedies becomes effective upon acceptance of an award under one of the provided manners for seeking relief, “[u]ntil the final award payment is accepted, the claimant may pursue any and/or all of the options available. This flexibility allows injured persons to pursue different avenues of compensation until a final award is accepted.” Final Rule at 59741.

12. By providing that claimants may seek simultaneously multiple forms of relief for injuries that the Hermit's Peak Fire caused, the HPCCAA's election of remedy procedure differs from the CGFAA's nearly identical election of remedy provision, because the CGFAA provides that a claimant's election of remedy is effective upon “filing” a notice of loss under the CGFAA, “a claim under the Federal Tort Claims Act,” or initiating any other “civil Action against the United States . . . relating to the Cerro Grande Fire . . . .” 44 C.F.R. 295.12(1)-(b). See CGFAA 104(h)(1)-(2).

2. The HPCCAA Claims Process.

13. The HPCCAA establishes within FEMA the Office of Hermit's Peak/Calf Canyon Fire Claims (“Claims Office”) whose purpose is to “receive, process, and pay claims in...