Todicheeney v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: May 17, 2022
• Docket: 3:21-cv-08003
• Status: Unknown

Opinion

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

9 Leland Todicheeney, No. CV-21-08003-PCT-MTL

10 Plaintiff, ORDER

11 v.

12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Pending before the Court is Plaintiff Leland Todicheeney’s Motion for Summary 16 Judgment (Doc. 14) and Defendant Office of Navajo and Hopi Indian Relocation’s 17 (“ONHIR”) Cross Motion for Summary Judgment (Doc. 16). For the reasons that follow, 18 Defendant’s Cross Motion is granted and Plaintiff’s Motion is denied. 19 I. BACKGROUND 20 A. The Settlement Act 21 Prior to 1974, a parcel of land in northeastern Arizona, known as the “Joint Use 22 Area,” was occupied by both the Navajo and Hopi Nations. Healing v. Jones, 210 F. Supp. 23 125, 132 (D. Ariz. 1962), aff’d, 373 U.S. 758 (1963). In an attempt to resolve conflict 24 between the tribes, Congress passed the Navajo-Hopi Settlement Act (the “Settlement 25 Act”) in 1974, which authorized the District Court of Arizona to divide the land into the 26 Navajo Partitioned Lands (“NPL”) and the Hopi Partitioned Lands (“HPL”). See Pub. L. 27 No. 93-531, § 12, 88 Stat. 1716 (1974); Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 28 1 1999). The Settlement Act also created the ONHIR1 to disburse benefits funds and to assist 2 tribal members relocating to the other side of the partition. Bedoni v. Navajo–Hopi Indian 3 Relocation Comm’n, 878 F.2d 1119, 1121–22 (9th Cir. 1989). To be eligible for benefits 4 under the Settlement Act, a Navajo applicant must prove that he was a legal resident of the 5 HPL as of December 22, 1974 and that he was the head of household at that time. Laughter 6 v. Office of Navajo & Hopi Indian Relocation, CV–16–08196–PCT–DLR, 2017 WL 7 2806841, at *1 (D. Ariz. June 29, 2017). The applicant bears the burden of proving legal 8 residence and head of household status. See id. (citing 25 C.F.R. § 700.147 (1986)). 9 B. Factual and Procedural History 10 Plaintiff is an enrolled member of the Navajo Nation. (Doc. 10, Administrative 11 Record (“AR”) at 38.) Plaintiff was born June 27, 1960 and was raised in the Fingerpoint 12 Valley in the Teestoh Chapter area on the HPL. (AR 38, 80, 101.) At age 18, Plaintiff 13 began performing seasonal work outside of the Reservation, mostly brush pilling, for Mr. 14 Kindle. (AR 102.) He was paid every two weeks by check, usually about three hundred 15 dollars. (AR 104.) During the seasons where Plaintiff was not working for Mr. Kindle, he 16 sometimes worked herding sheep or hauling wood both on and off the Reservation, earning 17 two or three hundred dollars per month. (AR 107.) Plaintiff lived with his parents when 18 he was not working for Mr. Kindle, usually in a structure near their homesite in the HPL. 19 (AR 86–87, 89.) Once his parents moved off the HPL, Plaintiff stayed in a cabin next door 20 to his parents’ house. (AR 87.) The parties dispute when the Plaintiff’s parents moved off 21 the HPL. (Doc. 17 at ¶ 19.) Plaintiff asserts that his parents began to move in 1980 but 22 did not complete their move until 1984. (Doc. 15 at ¶ 19.) OHNIR asserts that his parents 23 moved in 1980. (Doc. 17 at ¶ 19.) 24 In February 2009 and again in September 2009, Plaintiff applied for relocation 25 benefits under the Settlement Act. (AR 38–42, 49–53.) In June 2012, ONHIR denied 26 Plaintiff’s application based on its finding that Plaintiff was not the a “head of household” 27 when he moved off the HPL land. (AR 60–61.) Plaintiff appealed. (AR 66.)

28 1 The predecessor to the ONHIR was the Navajo-Hopi Indian Relocation Commission, or NHIRC. See 25 U.S.C. §§ 640d–11, 640d–12, 640d–13, 640d–14. 1 An Independent Hearing Officer (“IHO”) held a hearing in Plaintiff’s case in 2 September 2014. (AR 76.) Both Plaintiff and the Eligibility and Appeals Branch of the 3 ONHIR submitted post-hearing briefs. (AR 177–188, 122–142.) The IHO issued a written 4 decision affirming the denial of benefits in December 2014. (AR 258–265.) The following 5 month, ONHIR took final agency action on Plaintiff’s application and concluded the 6 administrative review process. (AR 272.) About six years later, Plaintiff filed a Complaint 7 in this Court, seeking judicial review of the ONHIR’s decision. (Doc. 1.) 8 II. LEGAL STANDARD 9 The Administrative Procedure Act (“APA”) governs judicial review of agency 10 decisions under the Settlement Act. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 11 1995). Under the APA, the Court may set aside an administrative agency’s decision only 12 if that decision was “arbitrary, capricious, an abuse of discretion, not in accordance with 13 law, or unsupported by substantial evidence.” Bedoni, 878 F.2d at 1122 (citing 5 U.S.C. 14 § 706(2)(A), (E) (1982); Walker v. Navajo–Hopi Indian Relocation Comm’n, 728 F.2d 15 1276, 1278 (9th Cir. 1984)). “Substantial evidence is more than a mere scintilla, but less 16 than a preponderance.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). When 17 conducting “judicial review pursuant to the APA, ‘summary judgment is an appropriate 18 mechanism for deciding the legal question of whether [ONHIR] could reasonably have 19 found the facts as it did.’” O’Daniel v. Office of Navajo & Hopi Indian Relcoation, No. 20 07-354-PCT-MHM, 2008 WL 4277899, at *3 (D. Ariz. Sept. 18, 2008) (citing Occidental 21 Eng’g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985)). 22 Under this standard, the Court applies a “narrow” and highly deferential standard of 23 review: 24 To make this finding the [C]ourt must consider whether the decision was based on a consideration of the relevant factors 25 and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the 26 ultimate standard of review is a narrow one. The [C]ourt is not empowered to substitute its judgment for that of the agency. 27 28 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on 1 other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (citations omitted). 2 In contrast to summary judgment in an original district court proceeding, the 3 function of the Court in a review of an administrative proceeding “is to determine whether 4 or not as a matter of law the evidence in the administrative record permitted the agency to 5 make the decision it did.” Occidental Engineering Co., 753 F.2d at 769. “Where evidence 6 is susceptible of more than one rational interpretation, it is the [IHO’s] conclusion which 7 must be upheld; and in reaching his findings, the [IHO] is entitled to draw inferences 8 logically flowing from the evidence.” Gallant v. Heckler, 753 F.2d 1450, 1453 (1984) 9 (citations omitted). Ultimately, the Court must affirm if the agency “considered the 10 relevant factors and articulated a rational connection between the facts found and the 11 choices made.” Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. 12 U.S. Dep’t of Agr., 499 F.3d 1108, 1115 (9th Cir. 2007) (quoting City of Sausalito v. 13 O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004)). 14 III. ANALYSIS 15 A. Extra-Record Material 16 Plaintiff attached seven exhibits to his motion for summary judgment (Ex. 4–9 and 17 11) that were not included in the administrative record. (Docs. 14-1, 14-2, and 14-5.) 18 OHNIR objects to these extra-record documents because Plaintiff never filed a motion to 19 supplement the record, but instead “attempts to circumvent Ninth Circuit law by simply 20 attaching the improper documents.” (Doc. 16 at 6–7, 15, see also Doc. 23 at 5–6.) 21 “[T]he focal point for judicial review [under the APA] should be the administrative 22 record already in existence, not some new record made initially in the reviewing court.” 23 Camp v. Pitts, 411 U.S. 138, 142 (1973). The administrative record consists of both the 24 documents compiled and submitted by the agency, but also of “documents and materials 25 directly or indirectly considered by agency decision-makers.” Thompson v. U.S. Dep’t of 26 Lab., 885 F.2d 551, 555 (9th Cir. 1989). A district court may consider documents outside 27 of the administrative record in four “narrowly construed” circumstances: when “(1) 28 supplementation is necessary to determine if the agency has considered all factors and 1 explained its decision; (2) the agency relied on documents not in the record; (3) 2 supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs 3 have shown bad faith on the part of the agency.” Fence Creek Cattle Co. v. U.S. Forest 4 Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). While “an agency must follow its own 5 precedent or else explain any deviation, . . . previous decisions only serve this purpose if 6 they carry precedential value in the case at hand.” Stago v. Off. of Navajo & Hopi Indian 7 Relocation, No. CV-20-08118-PHX-SPL, 2021 WL 4950349, at *3 (D. Ariz. Oct. 25, 8 2021). Accordingly, the Court will consider only those exhibits if “they set forth ONHIR 9 policy or if they involve facts indistinguishable from the instant case.” Id. 10 Exhibits 4 through 9 are excerpts of the administrative record from other ONHIR 11 decisions. (Docs. 14-1, 14-2.) Plaintiff asserts that these exhibits are necessary to this 12 Court’s analysis because they have “precedential effect,” and the Court must ensure that 13 all persons displaced under the Settlement Act are treated with fairness and consistency. 14 (Doc. 20 at 12.) Here, the excerpts of the administrative record provide the Court with no 15 way to determine what evidence was before the IHO in each case. Moreover, the Court 16 has no way of determining “that Plaintiff’s hand-picked sample of cases represents a settled 17 course of adjudication and a general policy by which Defendant’s exercise of discretion 18 will be governed.” Whitehair v. Off. of Navajo & Hopi Indian Relocation, No. CV17- 19 08278-PCT-DGC, 2018 WL 6418665, at *3 (D. Ariz. Dec. 6, 2018) (internal quotation 20 marks omitted). The Court will not consider these exhibits. 21 Plaintiff’s Exhibits 3 and 13 were already part of the administrative record because 22 they were included in Plaintiff’s post-hearing memorandum. (AR at 201–206, 208–212.) 23 Likewise, the E. Susan Crystal Memorandum was also part of the administrative record. 24 (AR 230–233.) Thus, the Court will consider these Exhibits. 25 Exhibit 11 is the Office of the Inspector General’s report on the “Status of the Office 26 of Navajo and Hopi Indian Relocation’s Appeal on Eligibility Determination Cases.” 27 (Doc. 14-5 at 50, Ex. 11.) The report was published in September 2020. (Id.) Plaintiff’s 28 denial of benefits was issued in December 2014, about six years prior. (AR 258–265.) 1 Accordingly, it is impossible for the IHO to have considered the report, and Plaintiff does 2 not make any argument that the report should be admitted under the other Fence Creek 3 factors. (Doc. 20 at 10–12.) The Court will not consider this exhibit. See Stago, 2021 WL 4 4950349 at *3 (applying Fence Creek and refusing to consider a Department of the Interior 5 Appeals Report). 6 Likewise, there is no need for the Court to refer to Plaintiff’s Exhibit 16, which is 7 the Ninth Circuit decision in Shaw, or this Court’s decision in Torpey, Exhibit 12, or 8 Herbert, Exhibit 14. (Doc. 20-1, Ex. 12, 14, 16.) In contrast, however, the Court will 9 consider Plaintiff’s Exhibit 15. Plaintiff cites In re Minnie Woodie to show the ONHIR’s 10 policy on customary use policies. (Doc. 20 at 12–14.) The Ninth Circuit and other judges 11 in this district have held that “an applicant’s use of land for traditional activities qualifies 12 the applicant as a legal resident, which comes not from federal regulations but from the 13 Minnie Woodie decision.” Id. (citing Shaw, 860 Fed. App’x. at 494–95 n.1) (Bade, J., 14 dissenting). Because the IHO was required to consider the Minnie Woodie decision and its 15 holding, the Court finds Plaintiff’s Exhibit 16 to be a part of the administrative record. Id. 16 B. Move-Off Date 17 The parties do not dispute that Plaintiff was an HPL resident until 1980. (Doc. 14 18 at 8, Doc. 16 at 12.) Plaintiff asserts that he was an HPL resident until 1984 when his 19 parents completed their move. (Doc. 14 at 8.) To establish he is qualified for benefits, 20 Plaintiff bears the burden of showing he was the head of a household at the time he moved 21 off the HPL. 25 C.F.R. § 700.147(a), (b). As described in the comments to the Settlement 22 Act, the term “residence” in the final rule “requires an examination of a person’s intent to 23 reside combined with manifestations of that intent.” Commission Operations and 24 Relocation Procedures; Eligibility, 49 FR 22277–01 (May 29, 1984). This element of 25 subjective intent allows that “[a]n individual who was, on December 22, 1974, away from 26 the land partitioned to the Tribe of which he/she is not a member may still be able to prove 27 legal residence.” Id. Manifestations of intent may include ownership of livestock, 28 ownership of improvements, grazing permits, livestock sales receipts, homesite leases, 1 medical records, school records, employment records, mailing address records, banking 2 records, voting records, census data, court records, the Joint Use Area roster, and any other 3 relevant data. 49 Fed. Reg. 22, 278. 4 At the hearing, the parties stipulated that Plaintiff’s parents moved off in June of 5 1980, they maintained their HPL homesite primarily for ceremonies, “and there was a 6 cornfield” until 1982. (AR at 118–19.) But Plaintiff asserts his residence was the HPL 7 homesite until 1984, and the “temporarily away” exception should apply for the times he 8 was working for Mr. Kindle. (Doc. 14 at 9.) 9 The IHO held “[t]he parties stipulated that the move off date for applicant’s family’s 10 relocation was June 1980.” (AR at 259.) The IHO also noted that Plaintiff’s family 11 participated in a ceremony at the HPL homesite in 1982, but “that residence had not been 12 [Plaintiff’s] legal residence for two years or more.” (Id.) This finding was adequately 13 supported by evidence in the record. First, the parties stipulated that Plaintiff’s parents 14 moved off in 1980. (AR at 118–19, 259.) Plaintiff testified that he lived next door to his 15 parents for all of his life. (AR at 102.) Besides the stipulation that the HPL homesite had 16 a cornfield until 1982 and Plaintiff himself testifying that his family owned “only like five” 17 livestock, Plaintiff provided no testimony regarding other manifestations of intent to reside 18 on the HPL. (AR 114.) Moreover, Plaintiff provides no evidence besides unsupported 19 testimony for a move-off date later than 1982. And Plaintiff provides no evidence of 20 continuously returning to the HPL homesite after 1980. Manygoats v. Off. of Navajo & 21 Hopi Indian Relocation, 735 F. Supp. 949, 953 (D. Ariz. 1990) (finding that an applicant 22 was not “temporarily away” because his presence at the homesite “was not infrequent, of 23 short duration or for social purposes”). Moreover, a stipulation is “in truth, a substitute for 24 evidence, in that it does away with the need for evidence.” United States v. Smith, 86 F.3d 25 1165, 1996 WL 267325, at *3 (9th Cir. 1996). For these reasons, the IHO’s decision 26 Plaintiff moved off HPL in 1980 was based on “such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion.” Begay v. Off. of Navajo & Hopi 28 Indian Relocation, 305 F. Supp. 3d 1040, 1047–48 (D. Ariz. 2018), aff’d, 770 F. App’x 1 801 (9th Cir. 2019); see also Laughter, 2017 WL 2806841, at *3. 2 C. Head of Household 3 Plaintiff challenges the IHO’s determination that he was not a self-supporting head 4 of household. (Doc. 14 at 6–8.) The IHO held that Plaintiff did not meet the head of 5 household requirement in 1980, the move off date, because Plaintiff’s claims regarding the 6 amount of money he made in the years before he moved off the HPL lacked any 7 documentary support. (AR at 263–264.) 8 To be considered a head of household, an applicant must show that she was a “single 9 person who at the time his/her residence on land partitioned to the Tribe of which he/she 10 is not a member actually maintained and supported him/herself[.]” 25 C.F.R. 11 § 700.69(a)(2). The applicant bears the burden of proving his/her head of household status. 12 Id. § 700.147(b). Moreover, “to qualify as a Head of Household, the individual must have 13 been a Head of Household as of the time he/she moved from the land partitioned to a tribe 14 of which they were not a member.” Id. § 700.69(c). Thus, to qualify for benefits, Plaintiff 15 must prove that he was the self-supporting head of household in 1980. The ONHIR’s 16 regulations do not set forth a specific dollar amount an applicant must have earned in order 17 to qualify as self-supporting, but earnings of at least $1,300 per year create a prima facie 18 showing of self-support. Benally v. Office of Navajo & Hopi Relocation, No. 13-CV-8096- 19 PCT-PGR, 2014 WL 523016, at *2 (D. Ariz. Feb. 10, 2014). 20 The IHO did not err in finding that Plaintiff failed to prove that he was earning 21 above the $1,300 threshold by 1980. Plaintiff asserts he was earning about $300 per 22 paycheck for several months while he worked for Mr. Kindle. (AR 104.) But none of this 23 income was documented in any way. Furthermore, Plaintiff did not indicate that he worked 24 for Mr. Kindle on his initial application, and given the fact that Mr. Kindle was a 25 government contractor, social security withholdings should have been itemized. (See AR 26 38–42, 49–53.) Given the total lack of support for Plaintiff’s claimed income, the IHO did 27 not err in its determination. Id. at *3 (affirming the IHO’s finding that an applicant was 28 not the head of household because his claimed earnings were “totally unsupported by 1 contemporaneous documentation” and were thus “not substantiated by the evidence”). 2 The IHO properly discounted contradictory testimony from Plaintiff and his family. 3 While Plaintiff, his sister, and his uncle all testified that Plaintiff worked for Mr. Kindle, 4 each provided different years when he began this work and for how long he worked there. 5 Plaintiff asserts he also made money through herding sheep and doing chores like hauling 6 firewood for neighbors. (AR 114.) But during that time, Plaintiff was not self-supporting; 7 he relied on his parents for food and shelter. (AR 106.) See Benally, 2014 WL 523016, at 8 *2–3 (affirming the IHO’s finding that an applicant was not self-supporting where he relied 9 on other sources for food and shelter). 10 Plaintiff points to several cases where he argues the ONHIR reached opposite 11 decisions. While it is true that the ONHIR must follow its own precedent, this requires 12 “that the agency appl[y] the law consistently to cases with similar material facts; it does 13 not require the agency find the same facts for different parties, in different proceedings, 14 and based on different evidence.” Daw v. Off. of Navajo & Hopi Indian Relocation, No. 15 CV-19-08212-PCT-SMB, 2020 WL 5632121, at *4 (D. Ariz. Sept. 21, 2020). The Court 16 finds that the IHO’s decision was not arbitrary and capricious and was supported by 17 substantial evidence. 18 D. Credibility Findings 19 Plaintiff also argues that the IHO’s credibility findings were not supported by 20 substantial evidence. (Doc. 14 at 11.) The IHO found Plaintiff and his two witnesses, his 21 sister and his uncle, to be not credible. “When the decision of an ALJ rests on a negative 22 credibility evaluation, the ALJ must make findings on the record and must support those 23 findings by pointing to substantial evidence on the record.” Ceguerra v. Secretary of 24 Health & Human Services, 933 F.2d 735, 738 (9th Cir. 1991) (citation omitted). Thus, “if 25 an ALJ has grounds for disbelieving material testimony, it is both reasonable and desirable 26 to require the ALJ to articulate those grounds in the original decision.” Id. at 740 (citing 27 Varney v. Secretary of HHS, 859 F.2d 1396 (9th Cir. 1988)). Nevertheless, an agency’s 28 “credibility findings are granted substantial deference by reviewing courts.” De Valle v. 1 I.N.S., 901 F.2d 787, 792 (9th Cir. 1990) (citations omitted). The Ninth Circuit has 2 recognized that the IHO alone is “in a position to observe [a witness]’s tone and demeanor, 3 to explore inconsistencies in testimony, and to apply workable and consistent standards in 4 the evaluation of testimonial evidence. He is . . . uniquely qualified to decide whether an 5 [witness]’s testimony has about it the ring of truth.” Sarvia–Quintanilla v. U.S. I.N.S., 767 6 F.2d 1387, 1395 (9th Cir. 1985). 7 The IHO found Plaintiff’s testimony about his claimed employment or earnings 8 noncredible because “no records exist to show any earnings from any of the described 9 activities.” (AR 261.) Similarly, the IHO found Plaintiff’s sister’s testimony regarding the 10 amount of money that Plaintiff earned to be “not credible” because “there is no 11 documentation.” (AR 260.) And finally, for the same reason, the IHO found Plaintiff’s 12 uncle to be “not a credible witness” because “he didn’t remember when he started working 13 for Kindle, he did not remember for how many years he worked for Kindle and he did not 14 have any records, ledgers, accounts, tax returns or any other documents showing any 15 earnings from working for Kindle.” (AR 260–61.) The IHO’s analysis was a paragraph 16 per witness, and he limited his credibility findings to the claimed income of Plaintiff. (Id.) 17 The IHO also found that the uncle’s testimony and Plaintiff’s testimony regarding the type 18 and location of work they performed for Mr. Kindle was “stunningly different.” (AR at 19 264.) Likewise, Plaintiff’s sister’s testimony “ranged far and wide and was thoroughly 20 inconsistent.” (Id.) The Court finds that these reasons are specific and cogent, and 21 therefore the IHO’s credibility findings were supported by substantial evidence and entitled 22 to deference by this Court. See Begay, 305 F.Supp.3d at 1050. 23 Plaintiff contends that the IHO’s credibility findings were arbitrary and capricious 24 because at Plaintiff’s sister’s hearing, the IHO found the sister to be credible. (Doc. 14 at 25 14.) But this argument rests on a collateral estoppel theory, which is expressly disallowed. 26 United States v. Mendoza, 464 U.S. 154, 155 (1984) (“[T]he United States may not be 27 collaterally estopped on an issue . . . adjudicated against it in an earlier lawsuit brought by 28 a different party.”). Nor must the ONHIR make the same credibility determination in two 1 different cases. Daw, 2020 WL 5632121, at *4 (concluding that though “the agency [must] 2 appl[y] the law consistently to cases with similar material facts; it does not require the 3 agency find the same facts for different parties, in different proceedings, and based on 4 different evidence”). 5 E. Trustee Obligations 6 Finally, Plaintiff contends that the ONHIR’s adverse decision violated the 7 government’s federal trust responsibilities and the duty of good faith. (Doc. 14 at 16–17, 8 Doc. 20 at 15–16.) Plaintiff argues that the ONHIR knew he had reached the age of 18 by 9 1978, but “they did not advise him to apply as a separate household and instead included 10 him in his parent’s application.” (Doc. 20 at 16.) 11 The Settlement Act expressly grants trustee authority to the government, and there 12 is a “longstanding general trust obligation that has dominated Government interaction with 13 Native Americans.” Bedoni, 878 F.2d at 1124. And the ONHIR has “an affirmative duty 14 to manage and distribute the funds appropriated pursuant to the Settlement Act such that 15 the displaced families receive[] the full benefits authorized for them.” Stago, 2021 WL 16 4950349, at *6 (D. Ariz. Oct. 25, 2021) (quoting Bedoni, 878 F.2d at 1124) (internal 17 quotations omitted). But the government’s trust obligation does not affect this Court’s 18 analysis of Plaintiff’s individual application and does not give ONHIR an affirmative duty 19 to disburse funds to Plaintiff. Id. (“[W]hether ONHIR has a duty to disburse benefits to 20 Plaintiffs flows from the IHO’s decision, but ONHIR’s duty to disburse benefits to eligible 21 applicants does not dictate Plaintiffs’ eligibility.”). Moreover, the record is clear that 22 ONHIR did advise Plaintiff to apply for benefits; in fact, the ONHIR sent Plaintiff a letter 23 in February 2009, several weeks before he applied. (AR 28, 38.) This letter included an 24 application and advised him that he “might be eligible for relocation benefits based on 25 information in [its] files.” (Id.) 26 IV. CONCLUSION 27 For the reasons stated above, Defendant ONHIR’s decision to deny relocation 28 benefits was not arbitrary, capricious, or an abuse of discretion. It was in accordance with || law and supported by substantial evidence. Therefore, Defendant is entitled to summary 2 || judgment. 3 Therefore, 4 IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment. (Doc. 14) 5 IT IS FURTHER ORDERED granting Defendant’s Cross Motion for Summary 6|| Judgment. (Doc. 16.) 7 IT IS FINALLY ORDERED directing the Clerk of the Court to enter judgment 8 || accordingly and close this case. 9 Dated this 16th day of May, 2022. 10 Wichal T. Hburde 12 Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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