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Date: 09-08-2021

Case Style:


Case Number: 07-2047

Judge: Timothy M. Tymkovich


Plaintiff's Attorney: Not Listed

Defendant's Attorney:

Denver, CO - Personal Damage Lawyer Directory


Denver, CO - Criminal defense lawyer represented Plaintiffs-Appellants with seeking an award of damages under the Cerro Grande Fire Assistance Act (“CGFAA”) claim.

Sherry Evans-Carmichael, her husband Jeff Carmichael, and their daughter
Tia Carmichael, were evacuated from their home in Los Alamos, New Mexico, in
May 2000 when the Cerro Grande Fire came within fifty feet of their home.
Because the wildfire was the end result of a prescribed burn that escaped the
control of the National Park Service, Congress enacted the CGFAA to
“compensate victims . . . for injuries resulting from the fire” and “to provide for
the expeditious consideration and settlement of claims for those injuries.” Pub. L.
106-246, Division C, § 102(b). In September 2000, Ms. Evans-Carmichael filed a
Proof of Loss with the Office of Cerro Grande Fire Claims, alleging that she and
her daughter sustained $3,449,105 in damages, because when the family was
allowed to return, she and her daughter experienced severe sensitivities to the
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 2
Under the federal regulations implementing the CGFAA, if a claimant is 1
dissatisfied with the administrative decision, she may seek review in federal
court. See 44 C.F.R. § 295.43.
lingering smoke, the debris from the fire, and the chemicals used to clean their
home, including chemicals from the new carpet pad. She further alleged that she
and her daughter experienced nausea, mental confusion, dizzyness, itchy eyes,
and other symptoms. Eventually, she was awarded $13,238.69 through the
administrative process.
Dissatisfied with the award, plaintiffs then filed a district court complaint
on October 1, 2004, in which they sought recovery for, among other things,
property damage, the physical injuries suffered by Ms. Evans-Carmichael and Tia,
and the loss of consortium suffered by Jeff Carmichael. The complaint also 1
alleged that FEMA violated their due process rights by basing a portion of its
award on a medical report that was not properly part of the administrative record.
They sought the equitable relief of either striking the report or allowing plaintiffs
to supplement the record with further evidence of their injuries.
Following the lodging of the administrative record with the district court,
plaintiffs filed objections to the record. The judge overruled some of the
objections and referred the matter to a magistrate judge for disposition on the
remaining objections and on the motion to supplement the record. The magistrate
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 3
The district court proceedings were delayed when plaintiffs’ original 2
counsel was granted leave to withdraw from the case and they were given time to
secure replacement counsel.
judge held an evidentiary hearing on November 2, 2006. Following a recess 2
during the hearing, the parties advised the magistrate judge that they had reached
a settlement. The following exchange between the magistrate judge and the
parties then occurred:
The Court: Would counsel please state the terms of the settlement
for the record?
Mr. Zavitz (Government Counsel): The parties have agreed that the
United States, FEMA, will pay the Plaintiffs $90,000 in a
methodology or category that will be tax-free to the Plaintiffs, and
that the customary time period for that payment by electronic funds
transfer is 30 to 60 days.
. . . .
The Court: All right. All right. Ms. Garrity, is that your
understanding of the terms of the settlement?
Ms. Garrity (Plainttiffs’ Counsel): It is, Your Honor, and my clients
have indicated to me that they accept the settlement amount.
The Court: All right. Mr. and Mrs. Carmichael, you understand that
that’s the terms of the settlement?
Ms. Evans-Carmichael: Yes.
Mr. Carmichael: Yes, I do, Your Honor.
The Court: All right. And, Mr. Zavitz, are you going to prepare the
necessary closing documentation?
Mr. Zavitz: Yes, we will prepare our standard fire claim release
[inaudible], as provided by regulation [inaudible].
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 4
The CGFFA regulations provide the steps to be followed by “an insurer or 3
The Court: All right. And I will just make a docket entry and advise
[the district court judge] that this matter has been settled and you’ll
submit the closing documentation within 30 to 60 days . . . .
Hr’g Tr. at 77-78.
On December 1, 2006, the government filed a motion and memorandum to
enforce the settlement, in which it informed the court that plaintiffs had refused to
sign the written settlement agreement and release. Following the withdrawal of
plaintiffs’ counsel, they filed pro se objections to defendants’ motion, generally
arguing that (1) the administrative record was incomplete or inaccurate and that
the administrative procedures were inadequate; (2) the settlement was the product
of intimidation, misrepresentation, and duress; and (3) no settlement was reached
because they never agreed to the terms of the written settlement agreement. In
regard to the third allegation, plaintiffs’ argued that:
[t]he written language of a settlement agreement is an essential part
of the settlement. The written language was not provided in court for
the Plaintiffs to review, which made the settlement agreement
uncertain and incomplete. No reasonable person agrees to the terms
of an agreement that does not contain elements that are essential to
the person’s situation.
R., Doc. 49 at 3. But they provided no specifics as to which portions of the
settlement agreement were objectionable, other than arguing that language
regarding insurance subrogation protection found in the federal regulations
related to the CGFAA should have been included in the settlement agreement.3
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 5
(...continued) 3
other third party with the rights of a subrogee” in filing a “Subrogation Notice of
Loss” with the government to recover monies previously paid to persons injured
by the fire. See 44 C.F.R. § 295.13.
On February 1, 2007, the district court issued its his opinion and order
enforcing the settlement agreement. The court determined that no evidentiary
hearing was necessary because the material facts concerning the terms of the
settlement agreement were undisputed, see United States v. Hardage, 982 F.2d
1491, 1496 (10th Cir 1993), and held that (1) plaintiffs’ arguments regarding the
completeness and accuracy of the administrative record and the adequacy of the
administrative procedures were irrelevant to whether a settlement had been
reached; (2) plaintiffs’ claim that they had been pressured into settlement by their
counsel, government counsel, and the court, were meritless; and (3) plaintiffs did
not identify any specific portion of the written settlement as being contrary to the
terms cited at the hearing, and their argument that oral settlement agreements are
not binding lacked merit. The court granted the government’s motion, ordered
plaintiffs to execute the written settlement agreement, and ordered the
government to deposit $90,000 into the court’s registry. The court denied as
moot the remaining motions because the “case ha[d] reached final resolution.”
R., Doc. 61 at 19. This appeal followed.
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 6
This second motion also calls on this court to “investigate why [FEMA] 4
violated the Paperwork Reduction Act . . . .” Pl’s Second Mot. for Relief at 1.
Plaintiffs claim that some of the forms that FEMA required them to complete did
not “display valid Office of Management and Budget (OMB) control numbers and
. . . disclosures” and therefore claim their signatures might not be “legally
binding.” Id. at 3-4. This claim will not be addressed as it was not raised in
Plaintiffs’ opening or reply brief or, more importantly, before the district court.
See Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991) (“The failure
to raise the issue with the trial court precludes review except for the most
manifest error.”).
Before turning to the merits, we first address two motions filed by
plaintiffs. The first, filed June 4, 2007, requests that this court: (1) provide
plaintiffs with legal counsel because “this litigation presents complex and
significant legal issues, the outcome of which may have wide impact,” Pl’s First
Mot. for Relief at 2; (2) suspend the application of our own procedural rules “to
prevent the dismissal of this case based on a procedural technicality, id. at 3; and
(3) grant plaintiffs a six-month extension to reply to the government’s response
brief in order “to work with the court to access the law library,” id at 5.
Plaintiffs’ second motion, filed following the completion of briefing,
informs this court that Ms. Evans-Carmichael has recently been diagnosed with
cancer. This motion renews Plaintiffs’ call for suspension of our rules and
appointment of counsel, and seeks an eight-month extension of time to allow
Ms. Evans-Carmichael to undergo impending medical treatment prior to filing
supplemental briefing.4
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 7
As to plaintiffs’ request for appointment of counsel, they have no Sixth
Amendment right to counsel as civil litigants. Johnson v. Johnson, 466 F.3d
1213, 1217 (10th Cir. 2006). Nevertheless, as they point out, this court does have
a plan “[t]o provide representation in special cases for persons who are financially
unable to obtain the services of counsel.” See 10th Cir. Rules, Add. II, Plan for
Appointment of Counsel in Special Civil Appeals. However, under this plan, we
may appoint counsel only when a number of requirements are met. As to four of
those requirements: (1) Plaintiffs have provided no evidence that they are
financially unable to obtain the services of counsel; (2) the dispositive issue of
this appeal is neither complex nor significant, (2) plaintiffs have effectively
presented their argument on this issue, and (3) the interest of justice do not
require appointment of counsel. See id.
As to plaintiffs’ argument for a suspension of our procedural rules and an
extension of time to file supplemental briefing, while it is clear that we have the
power to grant both requests, see Fed. R. App. P. 2 (providing that court of
appeals may suspend federal appellate rules for good cause); Fed. R. App. P. 26
(providing, among other things, that court of appeals may extend filing deadlines
for good cause); 10th Cir. R. 2 (providing this court may suspend 10th Circuit
rules), this case presents no good cause to exercise this power. This court
liberally construes the appellate briefs of pro se parties. See De Silva v. Pitts,
481 F.3d 1279, 1283 n.4 (10th Cir. 2007). Further, no extension of time to file
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 8
supplemental briefing is necessary at this point because the case is fully briefed.
We deny the motions and turn to the merits of the appeal.
The government states that no final order has been issued in this case and
that our jurisdiction lies under 29 U.S.C. § 1292(a) which provides for review of
the granting of injunctions. We disagree. We hold that we have jurisdiction
under 28 U.S.C. § 1291, which provides “jurisdiction of appeals from all final
decisions of the district courts.” Although the court did not enter a judgment or
dismissal order in this case, the district court’s order granting defendants’ motion
to enforce is a final decision under § 1291.
It is well settled that we can only address the underlying merits of a
lawsuit if it meets the requirements for appellate jurisdiction outlined
in 28 U.S.C. § 1291. A final decision is one that ends the litigation
on the merits and leaves nothing for the court to do but execute the
judgment. In considering whether the judgment constitutes a ‘final
decision’ under § 1291, the label used to describe the judicial
demand is not controlling-that is, we must analyze the substance of
the district court’s decision, not its label or form.
Graham v. Hartford Life And Accident Ins. Co., Nos. 06-5054, 06-5142, 2007 WL
2405264, at *3 (10th Cir. Aug. 24, 2007) (citations and internal quotation marks
omitted). “If no question exists as to the finality of the district court’s decision,
the absence of a Rule 58 judgment will not prohibit appellate review.” Burlington
N. R.R. v. Huddleston, 94 F.3d 1413, 1416 n.3 (10th Cir. 1996). In its order
enforcing the settlement, the district court ordered the enforcement of an
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 9
The briefs also complain about improper district court procedure and 5
incompleteness of and inaccuracy in the district court record. These claims are
moot. “A case is moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome. The crucial question is
whether ‘granting a present determination of the issues offered . . . will have
some effect in the real world.” Citizens For Responsible Gov’t State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (citation
omitted). The decision of the district court was based on the parties’ oral
settlement agreement, and not the record before the court. Consequently, even if
this court were to find that certain procedures were improper or that the record
was incomplete, the district court’s decision would still stand because plaintiffs
agreed to settle their claims.
agreement that ended the case. Although it would have been preferable for the
court to enter a separate judgment dismissing plaintiffs’ complaint, the order
effectively resolved all of the matters between the parties, and was thus
appealable as a final decision.
Turning to the merits, the majority of plaintiffs’ briefs concern the alleged
incompleteness and inaccuracy of the administrative record, the inadequacy of the
administrative procedures, and the pressure they felt to settle the case. We have
reviewed the record and the relevant law and these arguments are denied for
substantially the reasons set forth by the district court5
Plaintiffs next argue that the court erred in summarily enforcing the
settlement because the written agreement releasing their claims contained certain
terms not discussed at the hearing. Specifically, they assert that “proper
consideration for the agreement was not discussed in the court room.” Aplt.
Opening Br., Attach. A at 4, and that “[t]he agreement was ambiguous, uncertain
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 10
and incomplete [in that a]ll of the essential terms of the agreement were not
supported by consideration and were illusory.” Aplt. Reply Br. at 14. In
particular, they claim that
the “thing of value” or consideration in this case that is most
precious to the Plaintiffs are their constitutional rights, the Rule of
Law, insuring that no one is above the law, and helping other people
that had personal injuries that were caused by the Cerro Grande Fire
who were not treated fairly. . . . Any term of an agreement that
involves signing away a Constitutional Right must be considered an
“essential term” of an agreement. The written portion of this
agreement is too broad . . . and would have prevented Plaintiffs from
ever going back to correct the violations of their right to petition the
Government for a redress of grievances . . . even the criminal
activities that FEMA may have committed . . . and violations of their
right to due process.
We review the court’s decision to enforce a settlement agreement for abuse
of discretion, applying state contract law.
A trial court has the power to summarily enforce a settlement
agreement entered into by the litigants while the litigation is pending
before it. We review the district court’s decision to enforce such an
agreement for an abuse of discretion. An abuse of discretion occurs
when the district court based its decision on an erroneous conclusion
of law or where there is no rational basis in the evidence for the
ruling. Issues involving the formation and construction of a
purported settlement agreement are resolved by applying state
contract law.
Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004) (citations and internal
quotation marks omitted). Under New Mexico law, “[f]or an offer and acceptance
to create a binding contract, there must be an objective manifestation of mutual
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 11
assent by the parties to the material terms of the contract.” Pope v. Gap, Inc., 961
P.2d 1283, 1286-87 (N.M. Ct. App. 1998). Further, “[a]n oral stipulation for the
compromise and settlement of claims . . . made in open court in the presence of
the parties and preserved in the record of the court is as binding as a written
agreement.” Esquibel v. Brown Constr. Co., 513 P.2d 1269, 1272
(N.M. Ct. App.1973) (quotation omitted).
In the district court, plaintiffs complained that their agreement was limited
to the amount they would be paid to settle their suit and that since they had not
seen the written agreement, they could not have agreed to any of the written
provisions. The court read this argument to mean that oral settlement agreements
are unenforceable. If we read the complaint the same way, our review would be
limited to that argument, see Hicks, 928 F.2d at 970, and affirmance would be
required, see Esquibel, 513 P.2d at 1272.
We recognize, however, that plaintiffs filed their objections pro se, and we
will consider their claim to mean the oral settlement did not include an agreement
to release any potential constitutional claims against FEMA. But even under this
more liberal reading, their claim fails. Under § 104(e) of the CGFAA, an
acceptance of payment under the CGFAA shall, among other things, “be final and
conclusive on the claimant . . . with respect to all claims arising out of or relating
to the same subject matter” and also shall “constitute a complete release of all
claims against the United States (including any agency or employee of the United
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 12
States) under [the Federal Tort Claims Act], or any other Federal or State law,
arising out of or relating to the same subject matter.” Further, the CGFAA
regulations provide that claimants who receive compensation under the CGFAA
are required to sign a “Release and Certification Form.” See 44 C.F.R.
§ 295.30(c). The government’s counsel stated in open court that he would
prepare this “standard fire claim release,” and neither plaintiffs nor their counsel
objected. As prepared, the written agreement does little more than incorporate
the mandatory statutory release language, and specifically provides that the
agreement constitutes this release.
Further, it is clear from plaintiffs’ own briefs that they were aware from the
beginning of the administrative process that the CGFAA provided for release of
any potential constitutional claims against the government or its agency, FEMA.
They admit that when they first filed their Notice of Loss with FEMA, they
“asked for legal counsel to explain whey they had to sign away their
constitutional rights” and that “Ms. Evans-Carmichael spent a considerable
amount of time talking to a FEMA representative . . . about her concerns
regarding the signing away of her constitutional rights.” Aplt. Opening Br.,
Attach. A at 4. Consequently, the district court did not abuse its discretion in
determining that the settlement contemplated a release of plaintiffs’ potential
constitutional claims against FEMA.
Appellate Case: 07-2047 Document: 010140631 Date Filed: 09/27/2007 Page: 13
Finally, plaintiffs’ main constitutional claim against FEMA was that the
agency violated their due process rights by basing its award, at least partially, on
evidence that was not properly part of the administrative record. This claim was
specifically raised as part of the fourth cause of action of the complaint, R., Doc.
1 at 7; it was therefore clearly released as part of the settlement

Outcome: The District Court’s Memorandum Opinion and Order Enforcing Settlement
is therefore AFFIRMED.

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