1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Louise Ambrose, No. CV-21-08133-PCT-DLR
10 Plaintiff, ORDER
11 v.
12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 16 Pending before the Court are cross-motions for summary judgment, which are 17 fully briefed. (Docs. 16, 17, 20, 22.) The Court grants summary judgment for Defendant 18 the Office of Navajo and Hopi Indian Relocation (“ONHIR”) and denies summary 19 judgment for Plaintiff Louise Ambrose. 20 I. Background 21 In 1977, land that was jointly used by the Navajo and Hopi tribes was judicially 22 partitioned as authorized by Congress in the Settlement Act (the “Act”). Pub. L. No. 93– 23 531, 88 Stat. 1712 (1974) (formerly codified as amended at 25 U.S.C. §§ 640d to 640d 24 31). See generally Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999). The Act also 25 directed ONHIR, an independent federal agency, to provide certain benefits to any “head 26 of a household whose household is required to relocate” because of the partition. 25 27 U.S.C. § 640d-14(b). 28 Plaintiff seeks these benefits. She is an enrolled member of the Navajo Nation and 1 turned 18 on May 8, 1978. (AR 71, 350.) Plaintiff’s family formerly resided in the 2 Jeddito area that was partitioned for the use of the Hopi Tribe (“HPL”). (AR 274.) 3 ONHIR received Plaintiff’s Application for Relocation Benefits on February 24, 4 2009. (AR 71.) In her Application, Plaintiff certified that she married in 1979, had her 5 first child in 1980, and worked full-time for wages for the first time in 1982. (AR 74.) 6 She also indicated she moved off the HPL in 1974. (AR 74.) 7 Plaintiff supplemented her application, explaining that she returned to the HPL 8 during the summers until she graduated from high school, at which time she “moved back 9 in with [her] mother on the HLP area again.” (AR 93.) ONHIR then asked Plaintiff to 10 specify the exact date she permanently left the HPL, provide information about her 1977 11 earnings totaling $1,305, and how she supported herself in 1997. (AR 102.) 12 ONHIR denied benefits, noting that Plaintiff moved off the HPL in 1978—the last 13 date her family used the HPL homesite—but was not head of household by then because 14 she was not married, not a parent, and not self-supporting by the time she moved off. 15 (AR 102-03.) For the self-supporting finding, ONHIR explained that even though she 16 earned $1,305 in 1977, she lived with a host family who provided all her needs and 17 therefore was not self-supporting. (AR 103.) 18 Plaintiff appealed, and a hearing was held before Independent Hearing Officer 19 (“IHO”) Harold Merkow in March 2015. (AR 261.) Plaintiff’s brother, Alton Bedonie, 20 testified that the family had two homesites, one on the HPL and one on Navajo 21 Partitioned Land, and that the partition fence separating the homesites was erected in 22 1978, before the summer rains, which usually, according to Mr. Bedonie, washed out the 23 fence that July. (AR 276, 281, 285, 291.) Plaintiff testified that the partition fence was 24 erected in the fall of 1978 but provided no additional detail about the timing. (AR 322- 25 23.) 26 Plaintiff testified that she was living in Utah with a “foster” family, the Larsons, in 27 1977. (AR 329.) She further testified that she earned $1,305 that year by receiving a 28 Navajo Nation scholarship to attend BYU—which she ultimately did not do—and 1 working at the Larson family’s store. (AR 331.) Notably, Plaintiff testified that she did 2 not pay rent while living with the Larsons, that they provided her with meals, that they 3 took her on family trips, and that they provided her with clothing. (AR 329-30.) 4 Plaintiff further testified that she received a $1,000 tribal scholarship in spring 5 1978 to attend Dixie College, also in Utah. (AR 319-20.) She matriculated that fall and 6 earned an additional $442 working in the college library, bringing her total earnings for 7 1978 to $1,442. (AR 319-20.) 8 The IHO found that Plaintiff moved off the HPL in summer 1978, when the 9 partition fence was erected. (AR 381.) In making this finding, the IHO credited Mr. 10 Bedonie’s testimony over Plaintiff’s, explaining that Mr. Bedonie evinced a more 11 detailed and accurate account of the family history. (AR 382.) The IHO further found 12 that Plaintiff’s enrollment at Dixie College did not qualify her has head of household 13 because she applied the $1,000 scholarship only after the partition fence was erected. 14 (AR 384.) 15 The IHO denied Plaintiff’s appeal and entered Final Agency Action on June 10, 16 2015. (AR 382, 390.) 17 II. Standard 18 In an ordinary civil case, summary judgment is appropriate when there is no 19 genuine dispute as to any material fact and, viewing those facts in a light most favorable 20 to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed. R. 21 Civ. P. 56(a). In this action, Plaintiff seeks judicial review of agency actions pursuant to 22 the Administrative Procedures Act (“APA”). Although cross-motions for summary 23 judgment are the procedural vehicles by which the parties present their arguments, the 24 Rule 56(a) standard does not accurately describe the Court’s review. The parties might 25 choose to highlight different parts of the record or take liberties in characterizing or 26 summarizing it, but the administrative record is what it is. There are no fact disputes as 27 that phrase is traditionally understood. 28 The Court’s task instead is to examine the administrative record as it exists and 1 determine, in the context of the specific arguments advanced by Plaintiff, whether the 2 agency’s action is “arbitrary, capricious, an abuse of discretion, [] otherwise not in 3 accordance with law,” or “unsupported by substantial evidence.”1 5 U.S.C. § 706(2)(A), 4 (E). This review is “highly deferential” and requires “affirming the agency action if a 5 reasonable basis exists for its decision.” Sacora v. Thomas, 628 F.3d 1059, 1068 (9th 6 Cir. 2010) (quoting Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir.2009)). “Substantial 7 evidence is more than a mere scintilla but less than a preponderance—it is such relevant 8 evidence that a reasonable mind might accept as adequate to support the conclusion.” 9 Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). The plaintiff bears the burden to 10 demonstrate that an agency’s actions violate the APA. Forest Guardians v. U.S. Forest 11 Serv., 370 F. Supp. 2d 978, 984 (D. Ariz. 2004) (citing cases). 12 III. Analysis 13 Plaintiff alleges error in the IHO’s finding that she did not qualify for relocation 14 benefits and that ONHIR breached its fiduciary duty as to her by denying her application 15 for relocation benefits. The Court takes each in turn. 16 A. Qualifying for relocation benefits 17 To qualify for relocations benefits, an applicant must have become “a Head of 18 Household on or before the earlier of the date the person left the HPL (if a Navajo) or the 19 [Navajo Partitioned Lands] (if a Hopi) or July 7, 1986.” 25 C.F.R. §§ 700.69(c) and 20 700.147(e).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Louise Ambrose, No. CV-21-08133-PCT-DLR
10 Plaintiff, ORDER
11 v.
12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 16 Pending before the Court are cross-motions for summary judgment, which are 17 fully briefed. (Docs. 16, 17, 20, 22.) The Court grants summary judgment for Defendant 18 the Office of Navajo and Hopi Indian Relocation (“ONHIR”) and denies summary 19 judgment for Plaintiff Louise Ambrose. 20 I. Background 21 In 1977, land that was jointly used by the Navajo and Hopi tribes was judicially 22 partitioned as authorized by Congress in the Settlement Act (the “Act”). Pub. L. No. 93– 23 531, 88 Stat. 1712 (1974) (formerly codified as amended at 25 U.S.C. §§ 640d to 640d 24 31). See generally Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999). The Act also 25 directed ONHIR, an independent federal agency, to provide certain benefits to any “head 26 of a household whose household is required to relocate” because of the partition. 25 27 U.S.C. § 640d-14(b). 28 Plaintiff seeks these benefits. She is an enrolled member of the Navajo Nation and 1 turned 18 on May 8, 1978. (AR 71, 350.) Plaintiff’s family formerly resided in the 2 Jeddito area that was partitioned for the use of the Hopi Tribe (“HPL”). (AR 274.) 3 ONHIR received Plaintiff’s Application for Relocation Benefits on February 24, 4 2009. (AR 71.) In her Application, Plaintiff certified that she married in 1979, had her 5 first child in 1980, and worked full-time for wages for the first time in 1982. (AR 74.) 6 She also indicated she moved off the HPL in 1974. (AR 74.) 7 Plaintiff supplemented her application, explaining that she returned to the HPL 8 during the summers until she graduated from high school, at which time she “moved back 9 in with [her] mother on the HLP area again.” (AR 93.) ONHIR then asked Plaintiff to 10 specify the exact date she permanently left the HPL, provide information about her 1977 11 earnings totaling $1,305, and how she supported herself in 1997. (AR 102.) 12 ONHIR denied benefits, noting that Plaintiff moved off the HPL in 1978—the last 13 date her family used the HPL homesite—but was not head of household by then because 14 she was not married, not a parent, and not self-supporting by the time she moved off. 15 (AR 102-03.) For the self-supporting finding, ONHIR explained that even though she 16 earned $1,305 in 1977, she lived with a host family who provided all her needs and 17 therefore was not self-supporting. (AR 103.) 18 Plaintiff appealed, and a hearing was held before Independent Hearing Officer 19 (“IHO”) Harold Merkow in March 2015. (AR 261.) Plaintiff’s brother, Alton Bedonie, 20 testified that the family had two homesites, one on the HPL and one on Navajo 21 Partitioned Land, and that the partition fence separating the homesites was erected in 22 1978, before the summer rains, which usually, according to Mr. Bedonie, washed out the 23 fence that July. (AR 276, 281, 285, 291.) Plaintiff testified that the partition fence was 24 erected in the fall of 1978 but provided no additional detail about the timing. (AR 322- 25 23.) 26 Plaintiff testified that she was living in Utah with a “foster” family, the Larsons, in 27 1977. (AR 329.) She further testified that she earned $1,305 that year by receiving a 28 Navajo Nation scholarship to attend BYU—which she ultimately did not do—and 1 working at the Larson family’s store. (AR 331.) Notably, Plaintiff testified that she did 2 not pay rent while living with the Larsons, that they provided her with meals, that they 3 took her on family trips, and that they provided her with clothing. (AR 329-30.) 4 Plaintiff further testified that she received a $1,000 tribal scholarship in spring 5 1978 to attend Dixie College, also in Utah. (AR 319-20.) She matriculated that fall and 6 earned an additional $442 working in the college library, bringing her total earnings for 7 1978 to $1,442. (AR 319-20.) 8 The IHO found that Plaintiff moved off the HPL in summer 1978, when the 9 partition fence was erected. (AR 381.) In making this finding, the IHO credited Mr. 10 Bedonie’s testimony over Plaintiff’s, explaining that Mr. Bedonie evinced a more 11 detailed and accurate account of the family history. (AR 382.) The IHO further found 12 that Plaintiff’s enrollment at Dixie College did not qualify her has head of household 13 because she applied the $1,000 scholarship only after the partition fence was erected. 14 (AR 384.) 15 The IHO denied Plaintiff’s appeal and entered Final Agency Action on June 10, 16 2015. (AR 382, 390.) 17 II. Standard 18 In an ordinary civil case, summary judgment is appropriate when there is no 19 genuine dispute as to any material fact and, viewing those facts in a light most favorable 20 to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed. R. 21 Civ. P. 56(a). In this action, Plaintiff seeks judicial review of agency actions pursuant to 22 the Administrative Procedures Act (“APA”). Although cross-motions for summary 23 judgment are the procedural vehicles by which the parties present their arguments, the 24 Rule 56(a) standard does not accurately describe the Court’s review. The parties might 25 choose to highlight different parts of the record or take liberties in characterizing or 26 summarizing it, but the administrative record is what it is. There are no fact disputes as 27 that phrase is traditionally understood. 28 The Court’s task instead is to examine the administrative record as it exists and 1 determine, in the context of the specific arguments advanced by Plaintiff, whether the 2 agency’s action is “arbitrary, capricious, an abuse of discretion, [] otherwise not in 3 accordance with law,” or “unsupported by substantial evidence.”1 5 U.S.C. § 706(2)(A), 4 (E). This review is “highly deferential” and requires “affirming the agency action if a 5 reasonable basis exists for its decision.” Sacora v. Thomas, 628 F.3d 1059, 1068 (9th 6 Cir. 2010) (quoting Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir.2009)). “Substantial 7 evidence is more than a mere scintilla but less than a preponderance—it is such relevant 8 evidence that a reasonable mind might accept as adequate to support the conclusion.” 9 Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). The plaintiff bears the burden to 10 demonstrate that an agency’s actions violate the APA. Forest Guardians v. U.S. Forest 11 Serv., 370 F. Supp. 2d 978, 984 (D. Ariz. 2004) (citing cases). 12 III. Analysis 13 Plaintiff alleges error in the IHO’s finding that she did not qualify for relocation 14 benefits and that ONHIR breached its fiduciary duty as to her by denying her application 15 for relocation benefits. The Court takes each in turn. 16 A. Qualifying for relocation benefits 17 To qualify for relocations benefits, an applicant must have become “a Head of 18 Household on or before the earlier of the date the person left the HPL (if a Navajo) or the 19 [Navajo Partitioned Lands] (if a Hopi) or July 7, 1986.” 25 C.F.R. §§ 700.69(c) and 20 700.147(e). The issue is whether the IHO erred in finding that Plaintiff had not attained 21 head of household status by the move-off date. 22 1. Move-off date 23 The parties agree that the date that should be used as Plaintiff’s move-off date is 24 when the partition fence was erected and cut off the family from the HLP residence. The 25 IHO found that Plaintiff had moved off the HPL when the partition fence was erected in 26 1 For these reasons, it is the undersigned’s view that APA cases would be better 27 resolved via procedures similar to those used in social security disability appeals. See LRCiv 16.1. Summary judgment briefing is a poor fit because, at bottom, the Court is 28 tasked with reviewing an administrative record and determining whether the agency’s decision comports with the relevant legal standards and is supported by enough evidence. 1 Summer 1978. And substantial evidence supported the finding because Mr. Bedonie 2 testified that the fence was erected “before the summer rains in 1978” and that the 3 summer rain would arrive in July and wash out the fence, allowing the family’s cattle to 4 escape to the HPL side of the fence. (AR 285, 291.) 5 Plaintiff argues the IHO failed to explain why he credited Mr. Bedonie’s 6 testimony over her own testimony that the fence was erected “[i]n Autumn” 1978, thus 7 acting arbitrarily and capriciously. (Doc. 16 at 11-15; AR 322-23.) Again, not so. 8 “When the decision of an ALJ [Administrative Law Judge] rests on a negative credibility 9 evaluation, the ALJ must make findings on the record and must support those findings by 10 pointing to substantial evidence on the record.” Ceguerra v. Sec’y of Health & Human 11 Servs., 933 F.2d 735, 738 (9th Cir. 1991) (citation omitted). Here, the IHO explained that 12 Mr. Bedonie “had a much better recollection of events involving the family’s living 13 situation, both before and after erection of the partition fence,” and that his testimony was 14 more detailed, buttressing his claim that the fence was erected in the summer of 1978 by 15 noting that the “summer rains caused erosion under the fence.” (AR 382.) The IHO 16 supported his negative credibility finding and did not act arbitrarily or capriciously by 17 crediting Mr. Bedonie’s testimony over Plaintiff’s on the fence erection date. 18 2. Head of household 19 An unmarried person who is not a parent may qualify for head of household status 20 if he or she “actually maintain[s] and support[s] him/herself.” 25 C.F.R. § 700.69(a). 21 ONHIR’s binding regulations or policies do not identify a specific dollar amount an 22 applicant must have earned to qualify as “self-supporting.” Instead, the binding 23 regulation requires that the applicant prove that he or she “actually maintained and 24 supported him/herself,” whatever his wages. See 25 C.F.R. § 700.69(a)(2). ONHIR, 25 however, has recognized that an applicant who earned at least $1,300 per year can make a 26 prima facie showing of self-supporting status. See Benally v. Office of Navajo & Hopi 27 Relocation, No. 13-CV-8096-PCT-PGR, 2014 WL 523016 (D. Ariz. Feb. 10, 2014). 28 The IHO found that Plaintiff had not achieved head of household status by the 1 time the partition fence was erected in Summer 1978. And substantial evidence supports 2 this finding because other people provided her “basic personal needs for food and 3 shelter.” (AR 5.) 4 Plaintiff argues that the IHO should have found that she was a head of household 5 merely because of her earnings in excess of $1,300, either in 1977 or 1978. This fails for 6 two reasons. First, according to the so-called “Susan Crystal Memorandum” cited by 7 Plaintiff, a scholarship may be used in the self-supporting status consideration only if it 8 “includes funds for living expenses.” (Doc. 16-1 at 7.) Plaintiff provided no evidence 9 that either the 1977 or 1978 scholarships included funds for living expenses. The 1977 10 scholarship was never used at all, and Plaintiff did not apply the 1978 scholarship until 11 after the partition fence was erected. Absent pre-application evidence that portions of the 12 scholarship was earmarked for living expenses2 or actually applying scholarship funds 13 toward living expenses, Plaintiff has not met her burden to show that the scholarships met 14 the criteria in the Susan Crystal Memorandum. 25 U.S.C. § 700.147(b) (putting the 15 burden to prove head of household status on the applicant). 16 And second, even if those scholarships factored into the self-supporting 17 consideration, that doesn’t change that the Larsons gratuitously provided her basic 18 needs—food and shelter—before the partition fence was erected. As the Susan Crystal 19 Memo notes, a scholarship, is just one criterion in the self-support consideration. (Doc. 20 16-1 at 7.) Substantial evidence supported the IHO’s determination that Plaintiff was not 21 self-supporting when the partition fence was erected in Summer 1978. 22 B. Fiduciary claim 23 Plaintiff’s fiduciary claim depends on finding that ONHIR breached its fiduciary 24 duty by denying her relocation benefits as part of a system-wide failure to apply 25 consistent standards to applications for benefits. Because the Court finds that substantial 26 supports the IHO’s denial of benefits, the fiduciary claim fails.
27 2 Plaintiff argues in her briefing that the scholarship was “to pay for tuition and room and board,” citing AR 319-20. But that portion of the administrative record says 28 nothing about the scholarship being for room and board. Argument cannot stand in for evidence. 1|| IV. Conclusion 2 Substantial evidence supports the IHO denial of benefits. Accordingly, 3 IT IS ORDERED that Plaintiff's motion for summary judgment (Doc. 16) is 4|| DENIED and Defendant’s motion for summary judgment (Doc. 17) is GRANTED. The 5 || Clerk of the Court shall enter judgment accordingly and terminate the case. 6 Dated this 31st day of August, 2022. 7 b 4 bla □ 9 Do . Rayes 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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