Arellano et al v. Federal Emergency Management Agency et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELLA ARELLANO, et al.,
Plaintiffs,
vs. No. 1:26-cv-00221-KG-JFR
FEDERAL EMERGENCY
MANAGEMENT AGENCY, et al.,
Defendants.
ORDER SETTING BRIEFING SCHEDULE
This matter is before the Court following a hearing on April 30, 2026. Plaintiffs seek
review of agency action by Defendant Federal Emergency Management Agency (“FEMA”)
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1)–(2). Plaintiffs challenge
regulations and policies promulgated by FEMA governing the arbitration of claims submitted
under the Hermit’s Peak/Calf Canyon Fire Assistance Act, Pub. L. No. 117-180, § 104, 136 Stat.
2114, 2168 (2022). All parties agree that this case is appropriately resolved by submission of an
administrative record, followed by appellate briefing as required by Olenhouse v. Commodity
Credit, 42 F.3d 1560 (10th Cir. 1994). The Court sets the following briefing schedule.
1. Plaintiffs advance two claims for relief under the APA. Plaintiffs seek an order
setting aside under § 706(2) certain regulations and policies as “in excess of FEMA’s statutory
jurisdiction, authority, and limitations.” Doc. 1 at 2. Plaintiffs further request an order under
§ 706(1) compelling FEMA to refer Plaintiffs to de novo arbitration of their claims. Doc. 1 at 4.
2. The Court concludes that addressing Plaintiffs’ § 706(1) and § 706(2) claims in
separate briefs, with different briefing schedules, is appropriate in light of the opinion published
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on April 21, 2026, which examined a number of issues raised by Plaintiffs’ under § 706(2). See
Old Wood v. Fed. Emergency Mgmt. Agency, 2026 WL 1078698 (D.N.M.) (J. Browning).
3. Concerning Plaintiffs’ § 706(2) claim to set aside agency action, Defendants shall
lodge the Administrative Record within 7 calendar days of entry of this Order. Plaintiffs shall
file their opening brief within 14 calendar days of the lodging of the Administrative Record.
Defendants shall file a response within 14 calendar days of Plaintiffs’ opening brief, followed by
Plaintiffs’ reply within 14 calendar days thereafter. Defendants may file a surreply, if any,
within 7 calendar days.
Event Date
Administrative Record Thursday, May 7, 2026
Plaintiffs’ Opening Brief Thursday, May 21, 2026
Defendants’ Response Brief Thursday, June 4, 2026
Plaintiffs’ Reply Thursday, June 18, 2026
Defendants’ Surreply Thursday, June 25, 2026
4. These dates represent an accelerated briefing schedule, which is necessary to
avoid further delay in resolving Plaintiffs’ claims. The Court is persuaded that the parties will
not be prejudiced by the expedited schedule given the availability of an existing administrative
record and briefing on the issue.
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5. The Court orders the parties to address the following questions in their briefing:
(a) What impact, if any, does Old Wood have on the issues presented?
(b) If the Court determines that the administrative appeal exhaustion requirement is
arbitrary and capricious, or otherwise exceeds FEMA’s statutory jurisdiction, must the Court also
decide whether or when a claim becomes ripe for arbitration?
(c) Are the APA’s alternative means of dispute resolution provisions, §§ 571-84, and
FEMA’s promulgated regulations governing arbitration mutually exclusive? Can these
procedures be reconciled?
6. Regarding Plaintiffs’ § 706(1) claim to compel agency action, Defendants shall
lodge the Administrative Record within 30 days of entry of this Order. Plaintiffs shall file their
opening brief within 30 calendar days of the lodging of the Administrative Record. Defendants
shall file a response within 30 calendar days of Plaintiffs’ opening brief, followed by Plaintiffs’
reply within 20 calendar days thereafter. Defendants may file a surreply, if any, within 7
calendar days.
Event Date
Administrative Record Monday, June 1, 2026
Plaintiffs’ Opening Brief Wednesday, July 1, 2026
Defendants’ Response Brief Friday, July 31, 2026
Plaintiffs’ Reply Thursday, August 20, 2026
Defendants’ Surreply Thursday, August 27, 2026
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7. The Court orders the parties to address the following issues in their briefing:
(a) When is a plaintiff’s claim ripe for arbitration?
(b) Federal Rule of Civil Procedure 53 permits the Court to appoint a special master. Is
this process different from arbitration? If so, how? If the Court appointed a special master,
with the consent of the parties, what would the scope of the special master’s duties be?
(c) Would a decision by this Court compelling FEMA to submit Plaintiffs’ claims to
arbitration promote finality and ensure the expeditious consideration and settlement of Plaintiffs’
claims? Provide any other argument concerning procedural mechanisms that may assist the
Court in ensuring its decision achieves a final and expeditious resolution.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access
system.
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