1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Joey Tom Yazzie, No. CV-20-08097-PCT-ROS
10 Plaintiff, ORDER
11 v.
12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Before the Court is Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to the 16 Equal Access to Justice Act. (Doc. 40). Joey Tom Yazzie seeks an award of fees on the 17 ground that he was the prevailing party and Defendant Office of Navajo and Hopi Indian 18 Relocation’s (“ONHIR”) position was not substantially justified. (Doc. 40). ONHIR 19 argues Yazzie is not entitled to an award of attorney’s fees because ONHIR’s position was 20 substantially justified and because the Navajo Nation, not Yazzie, is the real party in 21 interest—and the Navajo Nation is not eligible for an award of attorney’s fees. (Doc. 47). 22 Yazzie will be awarded attorney’s fees and costs in the amount of $19,971.28. 23 BACKGROUND 24 In order to receive relocation benefits, Yazzie must have been a “resident” of Hopi 25 Partitioned Land (“HPL”) on December 22, 1974 and continued to be a resident of HPL 26 when he became a “Head of Household” as those terms are defined in the governing 27 regulations. 25 C.F.R. §§ 700.69, 700.147. Yazzie was born in Oregon and lived much of 28 his life in California but returned to HPL for summers and holiday breaks and lived on 1 HPL for a few years as a child. (Doc. 36 at 2). 2 On August 31, 2010, Yazzie applied for Relocation Assistance Benefits under the 3 Navajo and Hopi Land Settlement Act. Because Yazzie indicated in this application that 4 he did not know when he moved off of HPL, ONHIR determined Yazzie was a resident of 5 HPL until 1981, when ONHIR records established that Yazzie’s father moved off HPL. 6 (Doc. 36 at 2). ONHIR denied Yazzie’s benefits on June 11, 2012 because he was an 7 unemancipated minor, and not a head of household, in 1981. (Doc. 36 at 2). 8 On August 9, 2012, Yazzie’s appealed the denial and a hearing was held before an 9 Independent Hearing Officer (“IHO”). On April 25, 2014, the appeal was denied. Contrary 10 to the initial denial, the IHO determined Yazzie was not a legal resident of HPL on 11 December 22, 1974 or any time thereafter. (Doc. 11-1 at 91–93). The IHO did not address 12 the fact that Yazzie’s father, who Yazzie lived with until at least 1983, had been deemed a 13 resident of HPL through 1981. On the issue of “Head of Household,” the IHO’s sole 14 finding was that Yazzie “remained dependent on his parents until the end of 1983.” 15 Ultimately, the IHO concluded “[s]ince applicant was not a legal resident of [HPL], he is 16 not eligible for relocation benefits.” (Doc. 11-1 at 93). On April 23, 2020, Yazzie filed the 17 complaint in this action, appealing the hearing officer’s decision. 18 The Court granted summary judgment in favor of Yazzie and against ONHIR. (Doc. 19 36 at 6). The Court noted that, during the proceedings below, the parties agreed Yazzie 20 was a legal resident of HPL after 1974 and that the issue was whether Yazzie remained a 21 legal resident of HPL from 1982 to 1983, when Yazzie became a Head of Household. (Doc. 22 36 at 5) (citing Doc. 11 at 85). In other words, “the hearing began with the parties agreeing 23 the issue was Yazzie’s status as ‘Head of Household,’ not whether Yazzie had been a 24 resident of HPL.” (Doc. 36 at 5). Although there is evidence Yazzie was not a resident of 25 HPL after 1981, the IHO’s finding that Yazzie was not a resident any time after 1974 was 26 plainly contradicted by evidence showing Yazzie resided with his father, who was a 27 resident of HPL until around 1981. (Doc. 36 at 5). The Court therefore granted summary 28 judgment on the ground that the IHO’s decision that Yazzie was not a legal resident of 1 HPL after 1974 was “arbitrary, capricious, and not supported by substantial evidence.” 2 (Doc. 36 at 6); Bedoni v. Navajo–Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 3 (9th Cir. 1989) (citing 5 U.S.C. § 706(2)(A), (E) (1982)). The Court did not, however, find 4 Yazzie is entitled to relocation benefits. Rather, the Court merely determined that the 5 ground relied upon by the IHO was not supported by substantial evidence and remanded 6 for proceedings consistent with that finding. 7 Yazzie now seeks attorney’s fees pursuant to the Equal Access to Justice Act. (Doc. 8 40). 9 ANALYSIS 10 In relevant part, the Equal Access to Justice Act (“EAJA”) provides:
11 Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States 12 fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil 13 action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or 14 against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United 15 States was substantially justified or that special circumstances make an award unjust. 16 17 28 U.S.C. § 2412(d)(1)(A). The parties do not dispute that this provision of the EAJA 18 applies to this matter. Nor do they dispute that Yazzie prevailed. Accordingly, the issues 19 relevant to this Motion are ONHIR’s arguments that fees are not mandatory because (a) its 20 position was “substantially justified” and (b) the Navajo Nation, whom ONHIR claims is 21 the real party in interest, is not eligible for an award of fees. (Doc. 47). Upon review of 22 the parties’ briefing, the Court finds in favor of Yazzie and will award attorney’s fees in 23 the amount of $19,971.28. 24 I. ONHIR’s Position Was Not Substantially Justified 25 The government bears the burden to prove by a preponderance of the evidence that 26 its position was substantially justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 27 2013). The Supreme Court has explained, “substantially justified” means “‘justified in 28 substance or in the main’—that is, justified to a degree that could satisfy a reasonable 1 person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In deciding “whether the 2 government’s litigation position is substantially justified, ‘the EAJA . . . favors treating a 3 case as an inclusive whole, rather than atomized line items.’” Al-Harbi v. INS, 284 F.3d 4 1080, 1084 (9th Cir. 2002) (quoting United States v. Rubin, 97 F.3d 373, 375 (9th Cir. 5 1996)) (omission in original). 6 ONHIR’s position on appeal to this Court was that the IHO’s determination that 7 Yazzie had not been a resident of HPL land after 1974 was not arbitrary or capricious and 8 was supported by substantial evidence.1 ONHIR now argues its position was substantially 9 justified because of evidence showing Yazzie is not entitled to relocation benefits. (Doc. 10 47 at 11-13). While it may true that the question whether Yazzie is entitled to benefits can 11 be subject to reasonable dispute, the Court did not resolve or consider the question whether 12 Yazzie was entitled to benefits. Rather, at summary judgment, this Court determined that 13 the decision of the IHO that Yazzie was not a resident of HPL any time after 1974 was 14 arbitrary, capricious, and not supported by substantial evidence. (Doc. 36 at 5-6).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Joey Tom Yazzie, No. CV-20-08097-PCT-ROS
10 Plaintiff, ORDER
11 v.
12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Before the Court is Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to the 16 Equal Access to Justice Act. (Doc. 40). Joey Tom Yazzie seeks an award of fees on the 17 ground that he was the prevailing party and Defendant Office of Navajo and Hopi Indian 18 Relocation’s (“ONHIR”) position was not substantially justified. (Doc. 40). ONHIR 19 argues Yazzie is not entitled to an award of attorney’s fees because ONHIR’s position was 20 substantially justified and because the Navajo Nation, not Yazzie, is the real party in 21 interest—and the Navajo Nation is not eligible for an award of attorney’s fees. (Doc. 47). 22 Yazzie will be awarded attorney’s fees and costs in the amount of $19,971.28. 23 BACKGROUND 24 In order to receive relocation benefits, Yazzie must have been a “resident” of Hopi 25 Partitioned Land (“HPL”) on December 22, 1974 and continued to be a resident of HPL 26 when he became a “Head of Household” as those terms are defined in the governing 27 regulations. 25 C.F.R. §§ 700.69, 700.147. Yazzie was born in Oregon and lived much of 28 his life in California but returned to HPL for summers and holiday breaks and lived on 1 HPL for a few years as a child. (Doc. 36 at 2). 2 On August 31, 2010, Yazzie applied for Relocation Assistance Benefits under the 3 Navajo and Hopi Land Settlement Act. Because Yazzie indicated in this application that 4 he did not know when he moved off of HPL, ONHIR determined Yazzie was a resident of 5 HPL until 1981, when ONHIR records established that Yazzie’s father moved off HPL. 6 (Doc. 36 at 2). ONHIR denied Yazzie’s benefits on June 11, 2012 because he was an 7 unemancipated minor, and not a head of household, in 1981. (Doc. 36 at 2). 8 On August 9, 2012, Yazzie’s appealed the denial and a hearing was held before an 9 Independent Hearing Officer (“IHO”). On April 25, 2014, the appeal was denied. Contrary 10 to the initial denial, the IHO determined Yazzie was not a legal resident of HPL on 11 December 22, 1974 or any time thereafter. (Doc. 11-1 at 91–93). The IHO did not address 12 the fact that Yazzie’s father, who Yazzie lived with until at least 1983, had been deemed a 13 resident of HPL through 1981. On the issue of “Head of Household,” the IHO’s sole 14 finding was that Yazzie “remained dependent on his parents until the end of 1983.” 15 Ultimately, the IHO concluded “[s]ince applicant was not a legal resident of [HPL], he is 16 not eligible for relocation benefits.” (Doc. 11-1 at 93). On April 23, 2020, Yazzie filed the 17 complaint in this action, appealing the hearing officer’s decision. 18 The Court granted summary judgment in favor of Yazzie and against ONHIR. (Doc. 19 36 at 6). The Court noted that, during the proceedings below, the parties agreed Yazzie 20 was a legal resident of HPL after 1974 and that the issue was whether Yazzie remained a 21 legal resident of HPL from 1982 to 1983, when Yazzie became a Head of Household. (Doc. 22 36 at 5) (citing Doc. 11 at 85). In other words, “the hearing began with the parties agreeing 23 the issue was Yazzie’s status as ‘Head of Household,’ not whether Yazzie had been a 24 resident of HPL.” (Doc. 36 at 5). Although there is evidence Yazzie was not a resident of 25 HPL after 1981, the IHO’s finding that Yazzie was not a resident any time after 1974 was 26 plainly contradicted by evidence showing Yazzie resided with his father, who was a 27 resident of HPL until around 1981. (Doc. 36 at 5). The Court therefore granted summary 28 judgment on the ground that the IHO’s decision that Yazzie was not a legal resident of 1 HPL after 1974 was “arbitrary, capricious, and not supported by substantial evidence.” 2 (Doc. 36 at 6); Bedoni v. Navajo–Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 3 (9th Cir. 1989) (citing 5 U.S.C. § 706(2)(A), (E) (1982)). The Court did not, however, find 4 Yazzie is entitled to relocation benefits. Rather, the Court merely determined that the 5 ground relied upon by the IHO was not supported by substantial evidence and remanded 6 for proceedings consistent with that finding. 7 Yazzie now seeks attorney’s fees pursuant to the Equal Access to Justice Act. (Doc. 8 40). 9 ANALYSIS 10 In relevant part, the Equal Access to Justice Act (“EAJA”) provides:
11 Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States 12 fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil 13 action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or 14 against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United 15 States was substantially justified or that special circumstances make an award unjust. 16 17 28 U.S.C. § 2412(d)(1)(A). The parties do not dispute that this provision of the EAJA 18 applies to this matter. Nor do they dispute that Yazzie prevailed. Accordingly, the issues 19 relevant to this Motion are ONHIR’s arguments that fees are not mandatory because (a) its 20 position was “substantially justified” and (b) the Navajo Nation, whom ONHIR claims is 21 the real party in interest, is not eligible for an award of fees. (Doc. 47). Upon review of 22 the parties’ briefing, the Court finds in favor of Yazzie and will award attorney’s fees in 23 the amount of $19,971.28. 24 I. ONHIR’s Position Was Not Substantially Justified 25 The government bears the burden to prove by a preponderance of the evidence that 26 its position was substantially justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 27 2013). The Supreme Court has explained, “substantially justified” means “‘justified in 28 substance or in the main’—that is, justified to a degree that could satisfy a reasonable 1 person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In deciding “whether the 2 government’s litigation position is substantially justified, ‘the EAJA . . . favors treating a 3 case as an inclusive whole, rather than atomized line items.’” Al-Harbi v. INS, 284 F.3d 4 1080, 1084 (9th Cir. 2002) (quoting United States v. Rubin, 97 F.3d 373, 375 (9th Cir. 5 1996)) (omission in original). 6 ONHIR’s position on appeal to this Court was that the IHO’s determination that 7 Yazzie had not been a resident of HPL land after 1974 was not arbitrary or capricious and 8 was supported by substantial evidence.1 ONHIR now argues its position was substantially 9 justified because of evidence showing Yazzie is not entitled to relocation benefits. (Doc. 10 47 at 11-13). While it may true that the question whether Yazzie is entitled to benefits can 11 be subject to reasonable dispute, the Court did not resolve or consider the question whether 12 Yazzie was entitled to benefits. Rather, at summary judgment, this Court determined that 13 the decision of the IHO that Yazzie was not a resident of HPL any time after 1974 was 14 arbitrary, capricious, and not supported by substantial evidence. (Doc. 36 at 5-6). That 15 issue was not subject to reasonable dispute because, as the Court explained at summary 16 judgment, the parties agreed and the Certified Administrative Record “established Yazzie 17 was a legal resident on HPL until at least 1981.” (Doc. 36 at 6). 18 On remand, ONHIR may still present its arguments regarding whether it was 19 reasonable to deny benefits. 20 II. The Real Party In Interest Doctrine Does Not Apply 21 ONHIR argues that the Navajo Nation is the real party in interest in this case, not 22 Yazzie. However, the Court need not determine whether the Navajo Nation is the real 23 party in interest because the cases cited by ONHIR are inapposite. Following most other 24 courts to consider this question, the Court holds that a non-party cannot be deemed the 25 relevant party when assessing eligibility under the EAJA. 26 To be eligible for an EAJA award, a plaintiff seeking fees must first meet the 27 definition of a prevailing “party” set forth in 28 U.S.C. § 2412(d)(2)(B). A litigant is
28 1 “Substantial evidence is more than a mere scintilla, but less than a preponderance.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). 1 deemed a “party” only if it is “an individual whose net worth did not exceed $2,000,000 at 2 the time the civil action was filed,” or a “partnership, corporation, association, unit of local 3 government, or organization, the net worth of which did not exceed $7,000,000 . . . , and 4 which had not more than 500 employees at the time the civil action was filed.” 28 U.S.C. 5 § 2412(d)(2)(B). As the Fifth Circuit has noted, the statutory definition of “party” contains 6 no reference to real parties in interest or the application of the real party in interest doctrine 7 to deny attorney’s fees to a party. Nail v. Martinez, 391 F.3d 678, 684 (5th Cir. 2004). 8 ONHIR has failed to identify a single binding case holding the real party in interest 9 doctrine applies to the EAJA. ONHIR cited to Love v. Reilly, 924 F.2d 1492 (9th Cir. 10 1991) for that principle. (Doc. 47 at 2). But Love did not hold the real party in interest 11 doctrine applied. Rather than deciding whether the doctrine did or did not apply, Love 12 merely acknowledged the D.C. Circuit had applied the real party in interest doctrine to the 13 EAJA. See id. at 1494 (distinguishing Unification Church v. INS, 762 F.2d 1077 (D.C. 14 Cir. 1985)); see also Southwest Marine, Inc. on Behalf of Universal Painting & 15 Sandblasting Corp. v. United States, 43 F.3d 420, 423 (9th Cir. 1994) (noting Love 16 “acknowledged” Unification Church). Love did not follow the D.C. Circuit because, even 17 if the doctrine applied, there was no evidence the alleged real party in interest in that case 18 was liable for the attorney’s fees. Without such evidence, the real party in interest doctrine 19 had no possible application. See Love, 924 at 1494 (“The real party in interest doctrine 20 does not support the government’s argument in this case.”) (distinguishing Unification 21 Church); see also Wall Indus. Inc. v. United States, 15 Ct.Cl. 796, 803 (1988), aff’d, 883 22 F.2d 1027 (Fed. Cir. 1989) (assuming without deciding that the real party in interest 23 doctrine applied to a non-party under the EAJA because it would not have affected the 24 outcome of the case). 25 Although the D.C. Circuit applied the real party in interest doctrine to the similarly- 26 worded component of the EAJA involving awards of fees in administrative proceedings, 5 27 U.S.C. § 504, in Unification Church, 762 F.2d at 1089, most other courts have not followed 28 its lead. For example, the Ninth Circuit reached the opposite conclusion in the context of 1 § 504, and expressly declined to follow Unification Church. See Southwest Marine, 43 2 F.3d at 422-23. Moreover, in Southwest Marine, the court distinguished Love and 3 Unification Church on the ground that, unlike in those cases (but like this case), the alleged 4 real party in interest was not a party to the case at all. Id. Although the Ninth Circuit in 5 Southwest Marine was somewhat unclear, it appeared to reason that applying the real party 6 in interest doctrine to a non-party would violate the statutory instruction that EAJA awards 7 are to be awarded to the prevailing “party.” Id. at 243 (noting “[a]t least one court 8 considering that question has suggested that an entity cannot be a ‘real party in interest’ 9 unless it is first a ‘party’” and declining to award attorneys’ fees to a non-party) (citing 10 SEC v. Comserv, 908 F.2d 1407, 1416 (8th Cir. 1990)). 11 Similarly, in Nail v. Martinez, which concerned the same provision of the EAJA as 12 this case, 28 U.S.C. § 2412(d), the Fifth Circuit declined to follow Unification Church on 13 the ground that the D.C. Circuit’s resort to legislative history to determine that the real 14 party in interest doctrine applied was inconsistent with the unambiguous definition of 15 “party” in the EAJA. See Nail, 391 F.3d at 684 (“[The D.C. Circuit’s] resort to the 16 legislative history for the inclusion of a non-statutory requirement for EAJA eligibility was 17 unnecessary. There is no ambiguity in the statutory language that would warrant looking 18 beyond the plain language of the statute for additional understanding of Congress's 19 intent.”). 20 ONHIR has identified only one case in which a party’s motion for attorney’s fees 21 was denied on the ground that a non-party real party in interest was not eligible for 22 attorney’s fees under the EAJA. In that case, an unpublished disposition from the District 23 of Nevada, the court wrote that “it is the net worth of the real party in interest that matters 24 . . . for the purposes of the EAJA.” Winnemucca Indian Colony v. United States ex rel. 25 Dep’t of Int., 2019 WL 320560, at *1 (D. Nev. Jan. 24, 2019) (citing Love, 924 F.2d at 26 1494). The court cited Love as the authority for this premise. But as explained above, 27 Love did not hold that it is the net worth of the real party in interest that matters. Rather, 28 Love merely acknowledged that Unification Church so held. See Love, 924 F.2d at 1494 1 (distinguishing Unification Church, 762 F.2d 1077). 2 Thus, although there is a circuit split on this issue, the Court is unaware of any court 3 of appeals case applying Unification Church to a non-party, either in the context of 5 4 U.S.C. § 504 or 28 U.S.C. § 2412(d). The most relevant binding case is Southwest Marine, 5 which held in the context of the analogous administrative component of the EAJA that the 6 real party in interest doctrine did not apply. The most directly applicable non-binding cases 7 are Nail, which held the doctrine did not apply where the alleged real party in interest was 8 a non-party, and the unpublished disposition by the District of Nevada in Winnemucca, 9 which held that it did. 10 Similar to Nail and Southwest Marine, the Court holds the real party in interest 11 doctrine does not apply to situations involving the EAJA in which the alleged real party in 12 interest is not a party to the lawsuit. This is so because the relevant provision of the EAJA 13 states that the fee shall be awarded to the “prevailing party.” 28 U.S.C. § 2412(d)(1)(A) 14 (emphasis added). ONHIR’s arguments seek to introduce an extra statutory requirement— 15 that the prevailing party for purposes of EAJA must be the real party in interest—into the 16 EAJA beyond those chosen by Congress. As observed by the Fifth Circuit, “[i]f Congress 17 had wanted to incorporate a real party in interest test into the EAJA’s definition of a ‘party’ 18 then it could have done so.” Nail, 391 F.3d at 683. The thorough and convincing statutory 19 analysis in Nail and Southwest Marine is more persuasive on balance than the perfunctory 20 reasoning in Winnemucca or the distinguishable holding of Unification Church, in which 21 the real party in interest was a party to the suit. 22 The Navajo Nation is not a party to this lawsuit and therefore cannot be a “prevailing 23 party,” even if it is the entity that, in some respects, ultimately would be liable for attorney’s 24 fees if the motion is not granted. Yazzie is a party to this suit and has demonstrated he is 25 an eligible “party” within the meaning of the EAJA. This position is supported by the 26 unambiguous text of the statute and the weight of caselaw in circuits across the country to 27 consider this issue. 28 III. The Fee Requested Is Reasonable 1 Because Yazzie is the prevailing party, ONHIR was not substantially justified, and circumstances do not make an award of fees unjust, the EAJA requires that reasonable || attorney’s fees and costs be awarded. 28 U.S.C. § 2412. According to the Ninth Circuit, 4|| the statutory maximum hourly rate under the EAJA, adjusted for cost of living was $207.78 in 2020, $217.54 in 2021, and $231.49 for the first half of 2022. See United States Court 6|| of Appeals for the Ninth Circuit, “Statutory Maximum Rates Under the Equal Access to 7\| Justice Act” (last accessed Aug. 25, 2022), 8 || https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/. Yazzie seeks attorney 9|| fees at the statutory cap of $207.78 for 11.2 hours of work performed in 2020, at the |) statutory cap of $217.54 for 75.1 hours of work performed in 2021, and $217.54 for four 11 |) hours of work performed in 2022, as well as $436.73 in costs. (Doc. 40-1 at 8). This comes toa total of $19,971.28. (Doc. 40-1 at 8). ONHIR has not argued this fee is unreasonable. 13 The Court finds the hourly rates, hours worked, and total expenses to be reasonable 14]| in light of the needs of this case and within the statutory maximum. Because Yazzie is the 15} prevailing party in this case and ONHIR’s position was not substantially justified and 16 || circumstances do not make an award of fees unjust, the Court is required to award Yazzie || attorney’s fees and costs in the amount of $19,971.28. 18 Accordingly, 19 IT IS ORDERED Plaintiff's Motion for Award of Attorney’s Fees Pursuant to the 20 || Equal Access to Justice Act (Doc. 40) is GRANTED. 21 IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in favor of Plaintiff and against Defendant in the amount of $19,971.28. 23 Dated this 9th day of September, 2022. 24 fo - 25 — 26 Senior United States District Judge 28
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