Bitah v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: September 18, 2025
• Docket: 3:24-cv-08067
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Lula Ben Bitah, No. CV-24-08067-PCT-DJH

10 Plaintiff, ORDER

11 v.

12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Plaintiff Lula Ben Bitah (“Ms. Bitah” or “Plaintiff”) has filed an administrative 16 appeal challenging the denial of her relocation benefits under 25 C.F.R. § 700.147. 17 (Doc. 1). Plaintiff filed a Motion for Summary Judgment, arguing that the decision of the 18 Independent Hearing Officer (“IHO”) is unsupported by substantial evidence and is 19 arbitrary, capricious and contrary to law. (Doc. 16). Defendant, the Office of Navajo and 20 Hopi Indian Relocation (“Defendant” or “OHNIR”), has filed a Response and its own 21 Cross-Motion for Summary Judgment. (Doc. 19). This matter is fully briefed and ripe for 22 review. (Docs. 24 & 30). Upon review of the briefs and the Administrative Record (Docs. 23 9–13, “AR”), the Court reverses the IHO’s December 2023 decision (the “2023 Decision”) 24 and remands this matter to OHNIR for further proceedings. 25 I. Background 26 A. Background and History of the Navajo–Hopi Settlement Act 27 This case arises from the Navajo–Hopi Settlement Act (“the Act”), Pub. L. No. 93- 28 531, 88 Stat. 1712 (Dec. 22, 1974). In 1882, “a 2.5-million-acre reservation in northeastern 1 Arizona [was established] for use by the Hopi Indians” and “such other Indians as the 2 Secretary of the Interior may see fit to settle thereon” by President Chester Arthur. 3 Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1121 (9th Cir. 1989) 4 (citing Exec. Order of December 16, 1882). “Members of the Navajo Tribe subsequently 5 migrated to the reservation and settled. The Hopi and Navajo Tribes coexisted on the 1882 6 reservation for 75 years, but became entangled in a struggle as to which Tribe had a clear 7 right to the reservation lands.” Id. 8 In 1962, due to controversy between the two Tribes, the U.S. District Court for the 9 District of Arizona determined that the Hopi and Navajo Tribes held joint, undivided and 10 equal interest in five-sixths of the reservation. See Healing v. Jones, 210 F. Supp. 125 (D. 11 Ariz. 1962), aff’d per curiam, 373 U.S. 758, (1963). This jointly held area is referred to as 12 the Joint Use Area (“JUA”). Id. The establishment of the JUA “failed to solve the inter- 13 tribal conflicts over the lands thereon.” Bedoni, 878 F.2d at 1121–22. 14 In 1974, as a response to the continued strife, Congress passed the Act. Pub. L. No. 15 93-531, 88 Stat. 1712 (Dec. 22, 1974). The Act “provided for the appointment of a 16 mediator to assist in negotiating a settlement and partition of the JUA.” Bedoni, 878 F.2d 17 at 1121. “In the event that the mediator’s efforts failed, the statute granted the district court 18 residual authority to make a final partition of the JUA.” Id. 19 These mediation efforts did fail, so, the Act directed the creation of the Navajo– 20 Hopi Indian Relocation Commission’s (“NHIRC”) which was “commissioned with the 21 task of relocating Navajo and Hopi residents.” Id. The Act authorized a court-ordered 22 partition of the former JUA occupied by Navajo and Hopi residents and created the Navajo 23 Partitioned Lands (“NPL”) and the Hopi Partitioned Lands (“HPL”). See id. at 1121–22. 24 The scope of the NHIRC’s authority included “the disbursement of funds equivalent to the 25 “reasonable cost of a decent, safe, and sanitary replacement dwelling to accommodate [a 26 displaced] household.” Id. at 1122. 27 Under the Act, enrolled members subject to relocation from land partitioned to the 28 other Tribe may qualify for relocation benefits and assistance. See 25 C.F.R. § 700.138. 1 The Settlement Act also created ONHIR, which provides services and benefits for 2 relocation of individuals who resided on land that was allocated to the other tribe. See 3 Stago v. Off. of Navajo & Hopi Indian Relocation, 562 F.Supp.3d 95, 100 (D. Ariz. 2021) 4 (citing Bedoni, 878 F.2d at 1121–22). The Act places upon ONHIR “an affirmative duty 5 to manage and distribute the funds appropriated pursuant to the Settlement Act such that 6 the displaced families receive[] the full benefits authorized for them. In other words, 7 ONHIR has a duty only to disburse benefits to those authorized to receive them under the 8 [] Act.” Id. at 106 (citation omitted). 9 B. Factual and Procedural Background of Ms. Bitah’s Application 10 Plaintiff is an enrolled member of the Navajo Nation. (AR at 1387). Plaintiff was 11 born on May 20, 1958, in the Red Lake area and turned eighteen on May 20, 1976. 12 (Doc. 17 at 5; Doc. 20 at 5). Plaintiff’s family formerly lived in the Red Lake Chapter in 13 an area that was partitioned for the use of the Hopi Tribe. (Id.) Plaintiff applied for 14 Relocation Benefits (the “Application”) on August 3, 2009. (AR at 1387). In the 15 Application, Plaintiff stated that the first calendar year that she earned more than $1,300.00 16 was 1978. (Id.) Plaintiff further stated she did not remember the exact date she moved from 17 the Hopi Partition Lands (“HPL”). (Id.) ONHIR denied Plaintiff’s Application in 2012, 18 noting that she was not eligible for relocation benefits because “[a]s of June, 1975 and 19 April, 1976, [she] was not a Head of Household.” (Id. at 1387—88). OHNIR also noted 20 that Plaintiff’s Social Security Earnings Statement (“SSE”) reflects Plaintiff earned $748 21 in 1975, $668 in 1976, $0 in 1977 and $1,833 in 1978. (Id. at 1388). 22 Plaintiff appealed OHNIR’s denial of her benefits and a hearing was held before the 23 IHO in 2014 (“the First Hearing”). (Id.) Plaintiff testified at the hearing, in pertinent part: 24 • She attended a Bureau of Indian Affairs (“BIA”) boarding school during her 25 freshman, sophomore and junior years of high school and graduated from a 26 new school in Tuba City her senior year. (AR at 1389). 27 • She worked as a maid in the summers of 1972 and 1973 and a waitress in 28 1974 and 1975 in Page, Arizona. As a waitress, she worked 37–40 hours 1 per week for 13 weeks and earned $3.35 an hour plus tips. She stated her 2 tips were “$3.00 on up.” (Id.) 3 • Plaintiff also testified that she would weave rugs for sale and would sell four 4 to five rugs a month during the summers for $100 and up. She would weave 5 about 20 rugs per year that her mother would sell. (Id. at 1390). 6 After the First Hearing, the IHO found Plaintiff was not entitled to relocation 7 benefits because she was “a dependent minor” as her basic needs for food and shelter were 8 provided by others. (Id. at 1394). The IHO also found that Plaintiff’s testimony regarding 9 her work history was “insufficient to determine that Applicant was a self-supporting head 10 of household at any time before . . . June 7, 1975.” (Id.) Plaintiff then sought review under 11 the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701 et seq., in this Court in 2020. 12 (Id.) 13 Upon review, this Court reversed and remanded the IHO’s decision in 2022, finding 14 that its “decision to apply the June 7, 1975, move-off date without explanation, reasoning, 15 or discernable reliance on the regulations for his decision was both arbitrary and 16 capricious.” (AR at 1395). It stated that the use of the June 7, 1975, move-off date “runs 17 counter to the record of evidence” because Plaintiff’s father testified that the construction 18 of the Navajo Partition Lands (“NPL”) home “was not completed [until] April 1976.” (Id.) 19 Another hearing was held in 2023 and Plaintiff again testified. (Id.) She testified, 20 in pertinent part, that: 21 • She was raised in Red Lake (Lower Tonalea), which was located on land 22 later portioned to the Hopi tribe. (Id. at 1396). 23 • The BIA boarding school in Richfield, Utah, provided plaintiff with room 24 and board—which included meals. While there, she worked in the kitchen 25 or dormitory and made approximately $80 per month, which was not 26 reported for tax purposes. (Id. at 1396–97). 27 • As a waitress, her tips would range from $10 to $20 and that she earned $400 28 total in tips during the summers. She had a Monday through Friday, 8:00am 1 to 5:00pm schedule. (Id. at 1397). 2 • When working in Page, she would sometimes stay in her Uncle’s “shack” 3 and other times, she and her father would drive home—which was about an 4 hour away. (Id. at 1398). 5 • The proceeds from the rugs Plaintiff would weave were used to help her 6 family with food, laundry and “everything.” She stated that it would take 7 between two days and a month to make a rug depending on the size and 8 design. Plaintiff wove and sold 15 to 20 rugs in the summer of 1975, which 9 she wove at the HPL homesite. She stated that the average proceeds for a 10 rug were between $150 and $250. (Id. at 1399). 11 Based on Plaintiff’s testimony at the Second Hearing, the IHO found that she was 12 not credible about her pay. (AR at 1405). He reasoned that, in 1972, the federal minimum 13 wage was $1.60, and in 1976, it was raised to $2.20. (Id.) The IHO stated that Plaintiff 14 “did not provide any explanation as to why, as a teenager yet to earn a high school degree, 15 she would have been paid significantly more than minimum wage.” (Id.) The IHO noted 16 that, over a 13-week summer, Plaintiff would have worked approximately 481 hours if she 17 had been working 37–40 hours per week; which would result in earnings of $1,611.35. 18 (Id. at 1405–06). He stated that there is a “vast discrepancy between [Plaintiff’s] claimed 19 hours worked, her claimed wage earned, and the earnings actually reported on the SSE.” 20 (Id. at 1406). The IHO also noted the discrepancy in Plaintiff’s testimony about her tips: 21 from “$3 on up” to between “$10 and $20.” (Id.) The IHO specifically noted that 22 [i]n 1975, it was customary to leave a 15% tip for meal service. By Ms. Bitah's estimates at Hearing II, that means that meals for her customers were 23 generally costing between $67 and $135 (if customers were leaving $10-$20 24 tips at 15% of the bill). However, the average cost a meal out in 1975 was approximately $3.00 to $5.00. Ms. Bitah did not explain why customers in 25 Page, Arizona, would regularly spend so much on a diner meal, or 26 alternatively, why they would leave such generous tips on more modest bills. 27 (Id. at 1406–07 (citing The Psychology of Restaurant Tipping, Michael Lynn, UNIVERSITY 28 OF NORTH CAROLINA BIBB LATANE, OHIO STATE UNIVERSITY, 2, 6 (1984)). Based on the 1 above discrepancies, the IHO concluded that “[a] logical explanation for [Plaintiff’s] 2 testimony is that she inflated her claimed wage earnings and tips in order to appear as 3 though she could meet [the] HoH eligibility requirements for the summers she worked in 4 Page.” (Id. at 1407). 5 The IHO also addressed Plaintiff’s rug weaving and found that: 6 From a logistical standpoint, Ms. Bitah's time on the HPL was likely limited due to varying schedules that included weekend work (which makes sense in 7 the tourist trade) and the hour commute from Page to the HPL homesite. 8 Also, between June 1975 and April 1976, the family was staying with Ms. Bitah’s uncle in Page and in transition from the HPL to the NPL. These 9 factors limit how much time was actually available for Ms. Bitah and her 10 family to dedicate to weaving. As a result, [she] is not credible about how many rugs she was weaving during the relevant time period. 11 (AR at 1408–09). The IHO also pointed out that Plaintiff suggested there may have been 12 receipts for the sale of these rugs, but did not produce one. (Id. at 1409). The IHO further 13 noted that “[t]he record also lacks reliable evidence that earnings from the rug sales flowed 14 to Ms. Bitah as a self-supporting individual. Rather, it appears that the earnings were 15 generated by the family and for the family.” (Id.) (emphasis in original). 16 Due to these inconsistencies the IHO found that “the record lacks ‘credible, direct, 17 and specific evidence’ that the Applicant was a HoH on April 3, 1976, when she moved 18 off the HPL.” (AR at 1426 (citing De Valle v. Immigr. & Naturalization Serv., 901 F.2d 19 787, 792 (9th Cir. 1990)). Now, for the second time, Plaintiff seeks review in this Court 20 of the denial of her relocation benefits. (Doc. 1). 21 II. Legal Standard 22 “Unless Congress specifies otherwise, we review agency action under the [APA].” 23 Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1995). When conducting judicial 24 review under the APA, “the reviewing court can reverse only if the agency action was 25 arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by 26 substantial evidence.” Bedoni v. Navajo–Hopi Indian Relocation Comm’n, 878 F.2d 1119, 27 1122 (9th Cir. 1989) (citing 5 U.S.C. § 706(2)(A), (E); Walker v. Navajo–Hopi Indian 28 1 Relocation Comm’n, 728 F.2d 1276, 1278 (9th Cir. 1984)). 2 The “arbitrary and capricious” standard dictates that “a reviewing court may not set 3 aside an agency rule that is rational, based on consideration of the relevant factors and 4 within the scope of the authority delegated to the agency by the statute.” Motor Vehicle 5 Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 42 (1983). The “standard 6 is narrow and a court is not to substitute its judgment for that of the agency.” (Id. at 43). 7 The “arbitrary and capricious standard is ‘highly deferential, presuming the agency action 8 to be valid and [requires] affirming the agency action if a reasonable basis exists for its 9 decision.” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (quoting 10 Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). 11 The “substantial evidence” level of proof requires “such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion even if it is possible to 13 draw two inconsistent conclusions from the evidence.” Nat’l Fam. Farm Coal. v. EPA, 14 960 F.3d 1120, 1132–33 (9th Cir. 2020) (internal quotation omitted). Courts often describe 15 this as “more than a mere scintilla but less than a preponderance.” Orteza v. Shalala, 50 16 F.3d 748, 749 (9th Cir. 1995). The reasoning rests in the “fundamental principle that an 17 agency, its experts, and its administrative law judges are better positioned to weigh 18 conflicting evidence than a reviewing court.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th 19 Cir. 2017). 20 Finally, “summary judgment is an appropriate mechanism” for judicial review under 21 the APA. Occidental Eng’g Co. v. Immigr. & Naturalization Serv., 753 F.2d 766, 770 (9th 22 Cir. 1985). “However, the agency is the fact finder and the court’s role ‘is to determine 23 whether or not as a matter of law the evidence in the administrative record permitted the 24 agency to make the decision it did.’” Begay v. Off. of Navajo & Hopi Indian Relocation, 25 2022 WL 3285443, at *2 (D. Ariz. Aug. 11, 2022) (citing Occidental Eng’g Co., 753 F.2d 26 at 769). 27 . . . . 28 . . . . 1 III. Discussion 2 The sole issue before the Court is whether the IHO erred in finding that Plaintiff 3 was not a Head of Household when she moved off the HPL in 1976. (Doc. 16 at 7; 4 Doc. 19 at 14). To qualify for relocation benefits, “the head of household and/or immediate 5 family must have been residents on December 22, 1974, of an area partitioned to the Tribe 6 of which they were not members.” 25 C.F.R. § 700.147(a). Additionally, an applicant must 7 have become a Head of Household on or before the earlier of the date the person left the 8 HPL (if a Navajo) or the NPL (if a Hopi) or July 7, 1986. See 25 C.F.R. §§ 700.69(c), 9 700.147(e). So, under the Act, Plaintiff bears the burden of proving she was the “the head 10 of household” (“HoH”) on or before April 3, 1976. 25 C.F.R. § 700.147(a–b). 11 A. Head of Household 12 ONHIR’s binding regulations or policies do not identify a specific dollar amount an 13 applicant must have earned to qualify as “self-supporting.” Instead, the binding regulation 14 requires that the applicant prove that he or she “actually maintained and supported 15 him/herself,” whatever his wages. 25 C.F.R. § 700.69(a)(2). ONHIR, however, has 16 recognized that an applicant who earned at least $1,300 per year can make a prima facie 17 showing of self-supporting status. See Benally v. Off. of Navajo & Hopi Relocation, 2014 18 WL 523016 (D. Ariz. Feb. 10, 2014). 19 Plaintiff argues that she was the HoH when she moved off the HPL in 1976. 20 (Doc. 16 at 7). She points out that the IHO failed to consider or credit the $80/month she 21 earned at school in Utah or that free food and lodging at school relieved her parents from 22 having to pay for her food and lodging. (Id. at 4-5 (citing Torpey v. Off. of Navajo & Hopi 23 Indian Relocation, No. CV-17-08184-PCT-SMB, 2019 U.S. Dist. LEXIS 154168 (D. Ariz. 24 Sep. 6, 2019)). Torpey is indeed instructive. 25 In Torpey, the plaintiff argued that she had attained HoH status because she was 26 attending college on a scholarship which entitled her to free tuition, room and board. 27 Torpey, 2019 U.S. Dist. LEXIS 154168 at *11. The IHO denied Plaintiff relocation 28 benefits because “[u]nlike a scholarship, grant, stipend, or loan for which an applicant 1 needs to qualify, applicant had no such restrictions — her tuition and room & board were 2 paid by the college simply because she qualified as a member of the Navajo Nation.” Id. 3 at *12. The Court pointed out that scholarship grants for individuals which include funds 4 for living expenses “should be considered in making the determination.” Id. The Court 5 found that the IHO’s “distinction” was “arbitrary and capricious because the reason why 6 she got free room and board along with tuition is not the point. The legally important fact 7 is that her parents did not have to provide her room and board once she went to school.” 8 Id. (emphasis added). 9 Furthermore, the “Crytal Memo,” a memorandum developed by ONHIR’s first 10 Attorney, E. Susan Crystal that the parties cite to, states that living expenses are to be used 11 in considering self-supporting status. (AR at 581). The Memo specifically states the 12 criteria to be used in considering self-supporting status, including: “[s]ingle individuals 13 who have received scholarship grants from the Tribe or educational institutions, as long as 14 the grant includes funds for living expenses. In cases where the grants are predicated on 15 the receipt of a certain amount of income from the individual or family which is more than 16 half of the total estimated expenses, this person would not be considered self-supporting.” 17 (Id.); see also Ambrose v. Off. of Navajo & Hopi Indian Relocation, 2022 WL 3921115, at 18 *3 (D. Ariz. Aug. 31, 2022), aff’d, 2024 WL 1553706 (9th Cir. Apr. 10, 2024) (noting that 19 a “scholarship” may be used in the self-supporting status consideration if it “includes funds 20 for living expenses.”). Black’s Law Dictionary defines a “scholarship” as “[m]oney or 21 other aid granted to help a student pursue educational achievement; esp., a discrete instance 22 of financial aid to someone who pursues a course of study, often in an institution of higher 23 learning.” Scholarship, BLACK’S LAW DICTIONARY (12th ed. 2024) (emphasis added). 24 In its Decision, the IHO discusses Plaintiff’s room and board. He states that “the 25 Crystal Memo does not treat scholarships for higher education as equivalent to boarding 26 school room and board. In order to receive a scholarship, an individual typically has to 27 apply and qualify pursuant to certain criteria. Then, the proceeds of the award are applied 28 to educational costs. This is distinguishable from room and board provided as part of a 1 boarding school general education program.” (AR at 1428). Contrary to the IHO’s 2 discussion, the Crystal Memo does not mention boarding school room and board. 3 (Id. at 579–81). It makes no distinction between a scholarship for college and room and 4 board provided through the BIA for boarding school. (See id.) Instead, the Memo focuses 5 on whether an individual is granted “living expenses.” (Id. at 581). 6 The record establishes that the BIA boarding school provided Plaintiff with room 7 and board—which included meals. (AR at 1396). A “scholarship grant from the Tribe or 8 educational institution” may be used in the self-supporting status consideration if it 9 “includes funds for living expenses.” (Id. at 581). While the IHO is correct that 10 “individuals who were still high school students at the time of certification will be 11 scrutinized more closely and will require substantiation of income and independence to 12 rebut the normal presumption of dependence,” (AR at 1418), he failed to acknowledge that 13 the “reason” why an individual gets free room and board is not the point of this analysis. 14 Torpey, 2019 U.S. Dist. LEXIS 154168 at *12. “The legally important fact is that her 15 parents did not have to provide her room and board.” Id. 16 Here, Ms. Bitah’s parents did not have to provide her certain living expenses 17 including room, board and meals during the school year. (AR at 1396). This financial aid 18 should have been, but was not, considered and discussed by the IHO. See Ambrose, 2022 19 WL 3921115, at *3; see also Yazzie v. Off. of Navajo and Hopi Indian Relocation, 2024 20 WL 1904560, at *4 (9th Cir. May 1, 2024) (“ONHIR has generally included school 21 financial aid in paying living expenses as a factor weighing in favor of self-supporting 22 status….”). The IHO states later in its decision that “her boarding school residence was 23 considered along with claimed, yet unsubstantiated, earnings from employment, tips, and 24 rug sales.” (Id. at 1431) (emphasis added). Yet, there is nothing in the opinion to discern 25 how the IHO’s considered the amount which her room, board and meals cost—or how this 26 alleviated her or her parents from paying these costs. (See id. at 1428). Instead, he disposed 27 of this argument in a conclusory manner without discussing whether Plaintiff’s room and 28 board amount to a scholarship. (Id.) This was error. 1 The Crystal Memo mandates only that “scholarship grants from the Tribe or 2 educational institutions” be considered if “the grant includes funds for living expenses.” 3 (AR at 581) (emphasis added). This Memo does not make any distinction, whatsoever, to 4 the educational level applicable to the grant or why the grant is given. (See id.) Courts 5 should interpret this Memo based on the plain meaning of the words Ms. Crystal chose to 6 use since the Memo is relied upon akin to binding legal authority. See generally 7 Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) (“[I]n interpreting a statute a 8 court should always turn first to one, cardinal canon before all others,” plain meaning, 9 because “courts must presume that a legislature says in a statute what it means and means 10 in a statute what it says there.”). The plain meaning of a scholarship encompasses “other 11 aid granted to help a student pursue educational achievement”—such as the room, board, 12 and meal expenses that Plaintiff was given here. See Scholarship, BLACK’S LAW 13 DICTIONARY. 14 Instead of an analysis of what a scholarship is and if Plaintiff’s boarding school 15 benefits can be recognized as such based on its plain meaning, the IHO seemed to have 16 imported his own personal interpretation to this term. (See AR at 1428 (“In order to receive 17 a scholarship, an individual[] typically has to apply and qualify pursuant to certain criteria. 18 Then, the proceeds of the award are applied to educational costs. This is distinguishable 19 from room and board provided as part of a boarding school general education program.”)). 20 The IHO does not explain how this interpretation alignes with the Crystal Memo nor did 21 the IHO provide citation for his interpretation of “scholarship.” (See id.) He also failed to 22 recognize that the Crystal Memo allows for consideration of “scholarships” which include 23 “funds for living expenses.” (Id.; AR at 581). 24 The IHO’s failure to credit Plaintiff for any amount of the room, board, and meal 25 expenses provided by the BIA while she was in school was arbitrary and capricious and 26 not supported by substantial evidence. Torpey, 2019 U.S. Dist. LEXIS 154168 at *14 27 (finding that the IHO’s failure to consider Plaintiff’s free tuition, room, and board was 28 arbitrary and capricious and not supported by substantial evidence). This is especially so, 1 because the IHO failed to support his conclusion that Plaintiff’s covered expenses did not 2 amount to a scholarship with any supporting legal authority. See, e.g., Tsosie v. Off. of 3 Navajo & Hopi Indian Relocation, 771 Fed. App’x 426 (9th Cir. 2019) (remanding the 4 IHO’s decision because “it failed to articulate reasons supporting his conclusion[.]”). Thus, 5 the Court will remand this matter to the IHO so that it may properly consider the room, 6 board, and meal expenses she was provided through her boarding school “the same as it 7 would consider a scholarship.” Torpey, 2019 U.S. Dist. LEXIS 154168 at *14. 8 B. Remand 9 “If the record before the agency does not support the agency action . . . the proper 10 course, except in rare circumstances, is to remand to the agency for additional investigation 11 or explanation.” Begay v. Off. of Navajo & Hopi Indian Relocation, 2017 WL 4297348, at 12 *4 (D. Ariz. Sep. 28, 2017) (citation omitted). “A rare circumstance might arise where the 13 reviewing court finds that the record clearly demonstrates an applicant’s eligibility for 14 relocation benefits.” Whitehair v. Off. of Navajo & Hopi Indian Relocation, 2018 WL 15 6418665, at *5 (D. Ariz. Dec. 6, 2018) (citation omitted). 16 Here, further proceedings, rather than an award of benefits, are warranted. The 17 Court reverses the IHO’s decision because it failed to consider the room, board, and meals 18 she received through the BIA while in high school. See supra Section III.A. In other 19 words, the IHO has more work to do in determining whether Plaintiff was providing for 20 her needs, Yazzie, 2024 WL 1904560, at *3, in light of the aid she was receiving. This may 21 include further investigation into Plaintiff’s financial aid for her living expenses and the 22 reassessment of pertinent record evidence. Because Plaintiff’s self-sufficiency or lack 23 thereof cannot be accurately determined on the present record, the Court must remand, 24 rather than award benefits. See Whitehair, 2018 WL 6418665, at *5. 25 Accordingly, 26 IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 16) is 27 GRANTED and Defendant’s Cross-Motion (Doc. 19) is DENIED. The Independent 28 Hearing Officer’s December 2023 Decision (AR at 1386–1434) is reversed and remanded 1 || to the Office of Navajo and Hopi Indian Relocation for further proceedings consistent with || the Court’s Order. 3 IT IS FINALLY ORDERED that the Clerk of Court shall enter judgment 4|| accordingly and terminate this case. 5 Dated this 17th day of September, 2025. 6 7 fe □□ 8 norable'Diang/. Hurfetewa 9 United States District Fudge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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