Gallegos et al v. Federal Emergency Management Agency et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTHONY GALLEGOS; OLEN C. PRIDDY;
SHEILA CAVITT-OLGUIN; TYLER KEMP;
DEBORAH LEYBA; ROSE ANNA
MARQUEZ; DANIEL JOSLIN; GREGORY
LUNGSTRUM; JUANTIA MAESTAS;
CANDACE SEAVERNS on behalf of the
Seaverns Family Living Trust; RICHARD
OGOREK; JUANTIA HERRERA-ROMERO,
Plaintiffs,
vs. 	No. CIV 24-0170 JB/JFR
FEDERAL EMERGENCY MANAGEMENT
AGENCY, DOES 1-20, inclusive,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Plaintiffs’ Opposed Motion to Correct
or Clarify the Final Judgment, filed August 18, 2025 (Doc. 80)(“Motion to Correct”); (ii) Federal
Emergency Management Agency’s Response to Petitioners’ Motion to Clarify or Correct the Final
Judgment and Cross-Motion to Clarify or Correct the Final Judgment, filed September 2, 2025
(Doc. 81)(“Cross-Motion”); and (iii) the Plaintiffs’ Opposed Motion for Supplemental Briefing on
Motion to Clarify the Judgment, filed January 6, 2026 (Doc. 102)(“Supplemental Briefing
Motion”). 	The Court holds a hearing on the Motion to Correct and on the Cross-Motion on
November 19, 2025. 	See Clerk’s Minutes at 1. 	The primary issues are: (i) whether the Court
should clarify or correct the Final Judgment, because the damages the Court awards in the final
judgment are inconsistent with the damages the Court awards at the judicial review hearing and in
its subsequent Memorandum Opinion and Order, filed July 21, 2025 (Doc. 74); (ii) whether the
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Court should reduce its contingency fee award1 to Plaintiffs Deborah Leyba and Gregory
Lungstrum, because the final contingency award is greater than the ten percent which the Court
deems reasonable in its Memorandum Opinion and Order; (iii) whether the Court should correct
a tabulation error in Plaintiff Juantia Herrera-Romero’s award; (iv) whether the Court should
clarify and alter its Final Judgment to include alleged uncontested amounts the Federal Emergency
Management Agency (“FEMA”) previously awards; and (v) whether the Court should allow
supplemental briefing. The Court concludes that: (i) it does not alter the Final Judgment pursuant
to the Plaintiffs’ requests, because the challenged amounts the Court awards in the Final Judgment
are consistent with its rulings in the Memorandum Opinion and Order, subsequent to the judicial
review hearing; (ii) it alters the contingency awards to give both Leyba and Lungstrum an actual
ten percent contingency fee; (iii) it corrects the tabulation error in Herrera-Romero’s award; (iv) it
does not clarify and alter the Final Judgment to include amounts which FEMA previously awards,
because these amounts are not accepted by the Plaintiffs prior to the judicial review hearing and
are not presented to the Court at the judicial review hearing; and (v) allows supplemental briefing,
but will not delay issuing this Memorandum Opinion and Order awaiting full briefs.
FACTUAL BACKGROUND
On April 6, 2022, the United States Forest Service initiates a prescribed burn in the Santa
Fe National Forest that spirals out of control, and causes a wildfire which spreads to non-federal
land and damages private property. 	See Motion to Correct at 2-3. 	That fire is the Hermit’s
Peak/Calf Canyon Fire. See Motion to Correct at 3. On September 30, 2022, Congress enacts the
Hermit’s Peak Fire Assistance Act, Pub. L. No. 117-180, § 104, 136 Stat. 2114, 2168
1 The Hermit’s Peak Act provides compensation for construction contingency fees. 	See
Gallegos, 2025 WL 2029724, at * 29. A construction contingency fee is “a predetermined amount
or percentage of the contract held for unpredictable changes in the project.” Managing the
contingency 	allowance (dated 	November 	30, 	2023), AMERICAN INSTITUTE OF ARCHITECTS,
available at https://www.aia.org/resource-center/managing-the-contingency-allowance.
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(2022)(“Hermit’s Peak Act”) to compensate victims of the Hermit’s Peak/Calf Canyon Fire. See
Motion to Correct at 3. 	The Hermit’s Peak Act provides the right for judicial review of the
Administrator’s final decision. See Hermit’s Peak Act § 104(i)(1). Pursuant to the Hermit’s Peak
Act, the Plaintiffs file claims for compensation and then file this action for judicial review of
FEMA’s decisions on their claims. See Motion to Correct at 3. After the Court denies FEMA’s
motion to dismiss for failure to exhaust administrative remedies, it holds the judicial review
hearing of Plaintiffs’ claims on May 5, 2025, and May 6, 2025. See Motion to Correct at 3. At
the hearing the Court reviews the administrative record and makes findings on the record, which
includes deciding awards for the Plaintiffs. See Motion to Correct at 3. Relevant to this Order, at
the hearing, the Court awards $326,538.00 to Leyba -- $226,538.00 in reforestation damages and
$100,000.00 in non-economic damages -- and $1,711,474.96 to Lungstrum -- $1,153,586.00 in
reforestation damages, $257,888.95 in erosion damages, and $300,000.00 in noneconomic
damages. See Cross-Motion at 8. On July 21, 2025, the Court issues its Memorandum Opinion
and Order with its findings from the judicial review hearing, which alters the amounts awarded to
Plaintiff Deborah Leyba and Plaintiff Gregory Lungstrum. 	See Gallegos v. Fed. Emergency
Mgmt. 	Agency, 	No. 	CIV 	24-0170 	JB/JFR, 	2025 	WL 	2029724 	(D.N.M. 	July 	21,
2025)(“Gallegos”). In Gallegos, the Court revises its calculation of Leyba’s reforestation award,
finding that substantial evidence supports FEMA’s calculation of Leyba’s reforestation damages,
which the Court set aside during the judicial review hearing. 	See 2025 WL 2029724, at * 40.
Accordingly, the Court reduces Leyba’s total award from $326,538.00 to $269,782.43 --
$169,782.43 in reforestation damages and $100,000.00 in noneconomic damages. See Gallegos,
2025 WL 2029724, at * 41. The Court similarly reduces Lungstrum’s award, modifying several
line items in Lungstrum’s erosion and reforestation awards. See Gallegos, 2025 WL 2029724, at
* 44-45. 	The Court reduces Lungstrum’s total award from $1,711,474.96 to $1,611,794.88 --
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$300,000.00 in noneconomic damages, $1,035,608.33 in reforestation damages, and $326,186.05
for road-regarding and erosion damages. 	See Gallegos, 2025 WL 2029724, at * 46. 	The Final
Judgment reflects these revised final amounts. See Final Judgment, filed July 30, 2025 (Doc. 77).
ANALYSIS
The Plaintiffs file the Motion to Correct or Clarify, arguing that the awards for Leyba and
Lungstrum in the Final Judgment are inconsistent with the Court’s awards at both the judicial
review hearing and in Gallegos. See Motion to Correct at 6-7. This argument misreads the Court’s
opinion in Gallegos; the Plaintiffs rely on the Court’s summary of the damages awards given at
the judicial review hearing in the Procedural Background section as evidence of the Court’s final
damages award in Gallegos, and do not focus on the Analysis portion of the opinion where the
Court revises the amounts from the judicial review hearing based on legal and factual consideration
of the Plaintiffs’ claims. See Motion to Correct at 7. The Plaintiffs recognize this misreading of
Gallegos in the Plaintiffs’ Reply to Motion to Correct or Clarify the Final Judgment and Opposition
to FEMA’s Cross-Motion to Correct or Clarify the Final Judgment, filed November 5, 2025 (Doc.
92)(“Plaintiffs’ Reply”), stating: “In light of FEMA’s opposition/cross-motion, it appears the
discrepancy is because this Court’s final order and judgment revised the award of Lungstrum’s
and Leyba’s reforestation damages provided at the judicial review hearing. If so, then Plaintiffs
accept those sums and withdraw that aspect of their motion.” Plaintiffs’ Reply at 2. The Court
thus deems the Plaintiffs to withdraw this discrepancy argument.
In the Cross-Motion, FEMA raises two separate requests for correction, asking the Court
first to modify the contingency fee awards given both to Leyba and to Lungstrum, because the
contingency fee amount that the Court awards in Gallegos to both Plaintiffs is a “fee based on the
cost estimate from Petitioners’ expert report, rather than a ten-percent fee derived from an updated
subtotal of line items found compensable under the Act by the Court.” Cross-Motion at 10. See
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Cross-Motion at 7. In response, the Plaintiffs argue that FEMA categorically denies the Plaintiffs’
contingency costs and, accordingly, contend that the Plaintiffs are the only ones to provide
evidence to support the contingency costs. See Plaintiffs’ Reply at 4. The Plaintiffs request that
the Court base the contingency fee on the Plaintiffs’ expert reports, which the expert formulates
after conducting a site inspection and providing estimates for actual work to be performed, “since
these reports represent the actual costs Leyba and Lungstrum are likely to incur when rehabilitating
their properties.” Plaintiffs’ Reply at 4. The Court agrees with FEMA and reduces the contingency
fee award.
In Gallegos, the Court holds that, although the Hermit’s Peak Act allows for construction
contingency fees, those fees must be reasonable and determines that an award of a ten percent
contingency fee is reasonable. See 2025 WL 2029724, at * 30. The Court adopts the requested
ten percent contingency fees from both Leyba and Lungstrum’s expert reports, which use a
reforestation damages estimation different than the reforestation damages award that the Court
gives to Leyba and to Lungstrum in Gallegos, and in the Final Judgment. See Gallegos, 2025 WL
2029724, at * 39, 44; Leyba Western Wildlife Report at 1 (AR-Leyba-00068); Lungstrum Western
Wildlife Report at 1 (AR-Lungstrum-000230). 	Because the Court modifies the reforestation
damages award for both Leyba and Lungstrum in Gallegos, however, the ten percent contingency
fee in the expert reports translates to an actual contingency fee of “roughly 10.7% of Leyba’s
modified reforestation award and 12.27% of Lungstrum’s modified reforestation award.” FEMA’s
Reply in Support of Cross-Motion to Clarify or Correct the Final Judgment, at 5, filed November
12, 2025 (Doc. 93)(“FEMA’s Reply”). The Court does not determine that a contingency fee award
of 10.7 percent or 12.27 percent is inherently unreasonable. 	Instead, the Court seeks to remain
consistent with its ruling in Gallegos, wherein the Court awards both Leyba and Lungstrum a ten-
percent contingency fee for its reforestation damages. 	See 2025 WL 2029724, at * 39, 44.
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Accordingly, the Court corrects the contingency fee award for both Leyba and Lungstrum to reflect
a ten-percent award of its reforestation damages -- $15,332.04 for Leyba and $89,574.38 for
Lungstrum. 	This re-calculation results in a total reforestation damages amount of $168,652.47
and a total award of $268,652.47 for Leyba, and a total reforestation damages amount of
$985,318.21 and a total award of $1,611.504.26 for Lungstrum.
Second, FEMA requests that the Court correct a tabulation error, adding $180,000.00 in
noneconomic damages to $58,773.11 in economic damages to reflect a damages award for Plaintiff
Herrera-Romero of $238,773.11, instead of the award amount of $266,460.24 that the Court
entered for Herrera-Romero in the Final Judgment. 	See Cross-Motion at 13. 	The Court grants
this request. In Gallegos, the Court notes FEMA’s unchallenged final economic damages offer of
$58,773.11 and awards Herrera-Romero $180,000.00 in noneconomic damages. 	See 2025 WL
2029724, at * 52. The Court does not award any other damages to Herrera-Romero. Adding up
the damages awards leads to a total damages amount of $238,773.11, instead of the $266,460.24
that the Court enters in the Final Judgment. Accordingly, the Court corrects the Final Judgment
to reflect the correct amount.
Finally, in the Plaintiffs’ Reply, the Plaintiffs argue that FEMA takes the position that it
does not owe the items of compensation which FEMA awards in its final determination, but that
Leyba and Lungstrum do not contest at the judicial review hearing. See Plaintiffs’ Reply at 3. The
Plaintiffs request clarification that Leyba and Lungstrum are entitled to these amounts, and request
that the Court alter the Final Judgment to include these uncontested amounts which FEMA
previously awards. See Plaintiffs’ Reply at 3. In response, FEMA argues that it does contest the
awards which Leyba and Lungstrum request, and oppose the Court’s addition of “contested line-
items to the final awards post-judgment.” FEMA’s Reply at 3. FEMA maintains that it contests
the awards Leyba seeks, because her request is for the “final award [of] the tax and claims
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preparation expenses offered in a prior, rescinded Letter of Determination.” FEMA’s Reply at 3.
Further, FEMA highlights that the Court already awards Leyba taxes in its Gallegos opinion, and
“opposes changing the Court’s tax determination.” FEMA’s Reply at 3. FEMA also asserts that
it contests Lungstrum’s requested awards, because these awards are “four line-items which he
rejected in his notices of administrative appeal, . . . and did not request in the May 5 and May 6,
2025 judicial review hearings.” FEMA’s Reply at 3. 	The Court notes that these awards which
Leyba and Lungstrum seek are unaccepted by Leyba and Lungstrum before the judicial review
hearing, and are not brought before the Court during the judicial review hearing. Accordingly, the
Court concludes that it is inappropriate for the Court to consider awarding these amounts on a
motion to correct the judgment under rule 60(a) of the Federal Rules of Civil Procedure, which
limits corrections to “clerical errors or judgments issued due to inadvertence or mistake.” Security
Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1065 (10th Cir. 1980). 	This conclusion is
especially sound, because Leyba and Lungstrum seek compensation for line items which they fail
to identify either in their Plaintiffs’ Review Hearing Brief, filed April 29, 2025 (Doc. 52), or during
the two days of judicial review hearings during which the Court rules on issues of disputed awards.
The Court will not allow the Plaintiffs to seek compensation for unaccepted damages which the
Plaintiffs do not bring to the Court’s attention at the judicial review hearing; the Plaintiffs have the
ability to chose which issues to litigate, which to concede, and which to ignore. Having chosen to
ignore these unaccepted damages at the judicial review hearing, the Plaintiffs must now live
without them.
The Court understands the Plaintiffs to believe that FEMA does not contest these damages
which they seek, and that therefore FEMA’s position is that the only damages available are those
which the Court decides at the judicial review hearing. 	See Plaintiffs’ Reply at 3. 	In denying
Leyba and Lungstrum the damages they request, FEMA does not assert, however, that partial
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review hearings are not available under the Hermit’s Peak Act. 	See FEMA’s Reply at 8
(“Lungstrum argues that the HPCC Act allows a claimant to seek judicial review of a portion of
their claim without setting aside the award. 	While true, Lungstrum did not accept certain line-
items and ask the Court to leave those line-items in place.”). Instead, FEMA asserts that FEMA
contests the damages which Leyba and Lungstrum seek, and that, therefore, the Plaintiffs should
not be able to request the Court to decide these damages after the judicial review hearing and after
the Court enters Final Judgment in the case. 	See FEMA’s Reply at 7. 	The Court agrees with
FEMA’s argument, insofar as it will not award unaccepted damages not presented to the Court at
the judicial review hearing after Final Judgment has been entered in the case.
Leyba argues that the Court should award several “uncontested” line items, which include
$8,724.37 in NRCS2 sales tax and $7,125.87 in claims preparation expenses, in Leyba’s January
13, 2024 Letter of Determination. See Plaintiffs’ Reply at 9. These items are part of a rescinded
Letter of Determination, however, which Leyba does not accept. See FEMA’s Reply at 10. Upon
request from Leyba, FEMA rescinds the January Letter of Determination and replaces it with a
May 14, 2024 Letter of Determination which does not list an NRCS sales tax award or claims
preparation award, but rather different categories such as “Tax,” “Reforestation -- Professional
Fees,” “Attorney Fees” and “Reforestation/Revegetation.” 	See Email from Leyba’s Counsel to
FEMA Requesting FEMA Rescind Leyba’s January 13, 2024 Letter of Determination (dated
February 29, 2024)(AR-Leyba-000195); Leyba’s May 14, 2024 Letter of Determination (dated
May 14, 2024)(AR-Leyba-000090). Leyba argues that, despite the fact that FEMA rescinds the
2 The Natural Resources Conservation Service is the United States Department of
Agriculture’s “primary lands conservation agency,” and the agency “generate[s], manage[s], and
share[s] the data, technology, and standards that enable partners and policymakers to make
decisions informed by objective, reliable science.” 	United States Department of Agriculture,
Natural 	Resources 	Conservation 	Service, About 	NRCS (undated), 	available 	at
https://www.nrcs.usda.gov/about.
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January Letter of Determination letter and replaces the letter, she is still entitled to the damages
that FEMA awards, because she “has not released FEMA in connection with these damages.”
Plaintiffs Reply at 9. The Court disagrees with Leyba’s assertion. Leyba’s act of requesting that
FEMA rescind FEMA’s Letter of Determination and replace the Letter of Determination with a
different award of damages in a subsequent Letter of Determination constitutes a rejection of
FEMA’s January Determination, and therefore FEMA does not owe those damages. That Leyba
asks FEMA to rescind these damages means that Leyba is no longer entitled to these damages, and
these damages are unaccepted. Accordingly, Leyba should bring these unaccepted damages before
the Court at the judicial review hearing for the Court to make rulings on these damages’ correct
disposition. The Court will not rescue Leyba, after it has entered final judgment in the case, and
rule on these unaccepted damages’ correct disposition. Accordingly, the Court declines to modify
the Final Judgment to award Leyba $8,724.37 in NRCS sales tax and $7,125.87 in claims
preparation expenses.
The Court determines that Lungstrum’s requested damages are similarly unaccepted.
Lungstrum requests the award of several claimed unaccepted line items: $2,336.03 in erosion
expert fees, $10,700 in arborist expert fees, $50,991.53 in arborist tax, and $3,226.34 in erosion
tax. Plaintiffs’ Reply at 8. Lungstrum asserts that he “did not contest these damages, so they were
not included in the judicial review hearing.” Plaintiffs’ Reply at 8. This assertion, however, does
not negate the fact that Lungstrum does not accept these damages. 	In his Notice of Appeal for
Claimant Gregory Lungstrum (dated August 27, 2024)(AR-Lungstrum-000142), Lungstrum
notifies FEMA of his intent to appeal its award of, among others, the (i) erosion expert fees; (ii)
the arborist expert fees; (iii) the arborist tax; and (iv) the erosion tax -- in sum, all of the damages
which he now asserts he is entitled to. See Notice of Appeal for Claimant Gregory Lungstrum at
1. Lungstrum cannot tell FEMA that an award is “unacceptable,” Notice of Appeal for Claimant
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Gregory Lungstrum at 1 (AR-Lungstrum-000142), not bring it up for the Court to review at the
judicial review hearing, and then assert that these same damages are acceptable because of this
failure to bring the damages before the Court. The Court will not rescue Lungstrum after it enters
final judgment in this case and rule on the correct disposition of these unaccepted damages.
Accordingly, the Court declines to modify the Final Judgment to award Lungstrum $2,336.03 in
erosion expert fees, $10,700 in arborist expert fees, $50,991.53 in arborist tax, and $3,226.34 in
erosion tax.
The Plaintiffs file the Plaintiffs’ Opposed Motion for Supplemental Briefing on Motion to
Clarify the Judgment, filed January 6, 2026 (Doc. 102), requesting leave from the Court to file
supplemental briefing. See Plaintiffs’ Opposed Motion for Supplemental Briefing on Motion to
Clarify the Judgment at 3. The Court decides the Motion to Correct and the Cross-Motion on the
briefing before the Court. Nevertheless, if the Plaintiffs want to say more, they are welcome to
file supplemental briefing.
IT IS ORDERED that: (i) the Plaintiffs’ Opposed Motion to Correct or Clarify the Final
Judgment, filed August 18, 2025 (Doc. 80), is denied; (ii) the Cross-Motion in the Federal
Emergency Management Agency’s Response to Petitioners’ Motion to Clarify or Correct the Final
Judgment and Cross-Motion to Clarify or Correct the Final Judgment, filed September 2, 2025
(Doc. 81), is granted; (iii) the Plaintiffs’ Opposed Motion for Supplemental Briefing on Motion to
Clarify the Judgment, filed January 6, 2026 (Doc. 102)(“Motion for Supplemental Briefing”), is
granted; (iv) Plaintiff Deborah Leyba’s corrected final damages award is $268,652.47; (v) Plaintiff
Gregory Lungstrum’s corrected final damages award is $1,611.504.26; and (vi) Plaintiff Juantia
Herrera-Romero corrected final damages award is $238,773.11.
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________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Brian S. Colon
Alexander F. Flores
Jacob Payne
Singleton Schreiber
Albuquerque, New Mexico
-- and --
Gerald Singleton
Benjamin Siminou
Jonna D. Lothyan
Krystle D. Berkstresser
Paul Starita
Alicia Zimmerman
Singleton Schreiber
San Diego, California
Attorneys for the Plaintiff
Ryan Ellison
First Assistant United States Attorney
Nicholas Sydow
Carrie Yang
Rafael Go
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Defendants
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