Opinion
No. CV-17-08254-PCT-SMB
2019-12-10
Esther KIRK, Plaintiff, v. OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION, Defendant.
S. Barry Paisner, Hinkle Shanor LLP, Santa Fe, NM, for Plaintiff. Peter Michael Lantka, US Attorneys Office, Phoenix, AZ, for Defendant.
S. Barry Paisner, Hinkle Shanor LLP, Santa Fe, NM, for Plaintiff.
Peter Michael Lantka, US Attorneys Office, Phoenix, AZ, for Defendant.
ORDER
Honorable Susan M. Brnovich, United States District Judge
Pending before the Court are Plaintiff's Motion for Summary Judgment, (Doc. 35) and Defendant's Cross-Motion for Summary Judgment, (Doc. 41). Plaintiff seeks relief from a denial of relocation assistance benefits by the Office of Navajo and Hopi Indian Relocation ("ONHIR"), an administrative agency of the United States. ONHIR seeks affirmation of its final decision.
I. Background
A. The Settlement Act
This is a Navajo-Hopi Land Settlement Act (the "Settlement Act") case. 25 U.S.C. §§ 640d – 640d-31 (repealed 1974); see also Bedoni v. Navajo-Hopi Indian Relocation Comm'n , 878 F.2d 1119, 1121–22 (9th Cir. 1989) (explaining the history of the Settlement Act); see also Herbert v. Office of Navajo and Hopi Indian Relocation , CV06-03014-PCT-NVW, 2008 WL 11338896, at *1 (D. Ariz. Feb. 27, 2008) (same). In 1974, Congress enacted the Navajo-Hopi Land Settlement Act, Pub. L. No. 93-531, § 12, 88 Stat. 1718, which authorized the partition of the Joint Use Area between the Hopi and the Navajo Tribes, resulting in the Hopi Partition Land ("HPL") and the Navajo Partition Land ("NPL"). 25 U.S.C. § 640d et seq. The Settlement Act required members from these two tribes to relocate to the land partitioned for their respective tribal affiliation. Id. § 640d-13(a). The Settlement Act also authorized and created a benefit program to compensate those individuals who were forced to abandon their homes and relocate to a partitioned area. Id. §§ 640d-13(a), 14(b)(1)–(2). The Settlement Act confers jurisdiction to the United States District Court for the District of Arizona to review appeals from eligibility determinations made by the independent agency (now known as ONHIR) that the Act established to compensate relocated individuals. Id. § 640d-14.
B. Factual and Procedural History
The Court has received the administrative record. (Doc. 13, "AR"). ONHIR denied Ms. Kirk relocation benefits in December 2011. (AR at 378). Ms. Kirk's Complaint alleges two counts: (1) ONHIR's final decision denying her eligibility was "unsupported by evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" (citing 5 U.S.C. § 706 (2)(A), (E) ); and (2) ONHIR breached its "fiduciary obligation" to her by failing to inform her of relocation benefits and delaying its decision. (Doc. 1, "Complaint"). The Court dismissed Count II on Feb. 13, 2019. (See Doc. 30).
The relevant facts from the record are as follows. Ms. Kirk was born July 6, 1969. (AR at 337). She is a member of the Navajo Nation who relocated from Hopi Partition Land ("HPL") to Navajo Partition Land ("NPL") on June 2, 1986. (Id. at 239, 337). She did not apply for relocation benefits before the July 7, 1986 deadline. (Id. at 23). She first contacted ONHIR for relocation benefits in February 1991, but ONHIR turned her away. (Id. at 7–12). In 2005, ONHIR contacted her to inform her that the Office would begin accepting late applicants. (Id. at 18). Ms. Kirk timely applied for relocation benefits soon after, but ONHIR denied her application on December 19, 2005. (Id. at 36–40; 61–64). She then appealed ONHIR's decision on January 9, 2006. (Id. at 66–69). On appeal, ONHIR waived the time limits for holding hearings and taking final agency action pursuant to 25 C.F.R. § 700.13(b). (Id. at 73).
Ms. Kirk's appeal was heard by the Independent Hearing Officer ("IHO") on June 17, 2011. (Id. at 238). The only issue at the hearing was whether Ms. Kirk was the head of her household as of June 2, 1986. The IHO denied her appeal in August 2011, concluding that Ms. Kirk was unable to prove she was a self-supporting head of household when she relocated to NPL. (Id. at 336–43). She asked the IHO to reconsider his ruling, but he denied her request on September 23, 2011. (Id. at 372–73). On December 9, 2011, ONHIR's Executive Director issued a letter affirming the IHO's denial of Ms. Kirk's relocation benefits. (Id. at 378). Included in the Director's letter was the determination that the IHO's recommended decision was correct and that the letter constituted final agency action in the matter. (Id. ).
At the hearing, Ms. Kirk called three witnesses, including herself, to show she was the head of her household because she worked for the Summer Youth Program in 1985. Ms. Kirk's first witness, Virda Yazzie, testified that she was White Cone Chapter's Chapter Coordinator in 1985 who supervised Ms. Kirk in the Summer Youth Program in 1985. (Id. at 243). Ms. Yazzie further testified that the minimum wage at the time was $3.35 per hour and that kids in the Summer Youth Program worked 32 hours a week for twelve to thirteen weeks and were paid by check. (Id. at 245, 248-49). She also testified that White Cone Chapter's policy in 1985 was to offer summer youth employment only to Chapter members. (Id. at 247). Ms. Kirk's second witness was her mother, Lena Begay. Ms. Begay testified that she has lived in White Cone since 1986. (Id. at 252). Before 1986, she lived in the Jeddito area on HPL. (Id. at 253). Ms. Begay also testified that she encouraged Ms. Kirk to get a summer job and Ms. Kirk worked the 1985 summer program for Ms. Yazzie. (Id. at 256). In 1985, Ms. Kirk went to Jeddito Public School and then went to Ganado High School in the fall. (Id. at 258). Ms. Begay testified that the distance from where she was living in Jeddito to White Cone Chapter was fifteen miles. (Id. ). Her family did not have a car at the time, but Ms. Begay's sister-in-law let them use her car. (Id. ). Ms. Begay further testified that Ms. Kirk lived at home while working at the summer program, which was two miles from the White Cone Chapter house. (Id. at 259-260). She also said that where the White Cone Chapter House was in 1985 is two miles from where they currently live. (Id. at 260). Ms. Kirk testified that she lived close to Star Mountain in Jeddito as a child, but relocated with her family in 1986. (Id. at 264-65). Ms. Kirk also stated that she worked the 1985 Summer Youth Program for the White Cone Chapter when she turned sixteen. (Id. at 266-67). She further testified that she earned $3.35 per hour for 32 hours a week for twelve weeks. (Id. at 268). To show her employment, Ms. Kirk inquired with the White Cone Chapter and Navajo Nation about her employment records, but neither place retained copies from 1985. (Id. at 269). Ms. Kirk testified that her family received transportation help from an aunt and uncle and that when using the uncle's car, the car stayed at her uncle's home twelve miles from where they lived. (Id. at 281).
ONHIR only called Mr. Shelton as a witness, who works for the Office of Relocation and has since 1978. (Id. at 287). He testified that he is a member of the Hard Rock Chapter, and that he reviewed Summer Youth Program employment applications in the early 1980s. (Id. at 287-88). Through his review of Summer Youth Program employment applications, he learned that the Chapter was required to obtain employees' social security numbers for reporting purposes. (Id. at 288).
Documents in the record include social security earnings and Ms. Kirk's application for relocation benefits. The social security earnings record shows no earnings for Ms. Kirk until 1988. (Id. at 35). In her application, Ms. Kirk wrote that she lived in Jeddito from November 1984 to August 1986. (Id. at 48-50). She did not list any employment between November 1984 and August 1986. (Id. ). She later included that she worked for the Summer Youth Program, but not until the summers of 1987 and 1988. (Id. at 49). Again, after consideration of the entire administrative record and each witnesses' credibility, the IHO denied Ms. Kirk's appeal, concluding that she was unable to prove she was a self-supporting head of household when she relocated to NPL. (Id. at 336–43).
C. STANDARD OF REVIEW
"Unless Congress specifies otherwise, we review agency action under the Administrative Procedure Act (the APA), 5 U.S.C. § 706(2)(A)." Hopi Tribe v. Navajo Tribe , 46 F.3d 908, 914 (9th Cir. 1995). A reviewing court can reverse an ONHIR decision only if the decision is "arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence." Bedoni , 878 F.2d at 1122 ; see 5 U.S.C. § 706 (2)(A), (E). A decision is arbitrary and capricious if the agency:
has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Info. Providers' Coal. for Defense of the First Amendment v. FCC , 928 F.2d 866, 870 (9th Cir. 1991) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ); see also Orteza v. Shalala , 50 F. 3d 748, 749 (9th Cir. 1995) ("Substantial evidence is more than a mere scintilla, but less than a preponderance[.]"). Accordingly, the Court will "sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made." Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation , 426 F.3d 1082, 1090 (9th Cir. 2005). Moreover, the Court must give deference to the agency's decision. San Luis & Delta-Mendota Water Auth. v. Locke , 776 F.3d 971, 994 (9th Cir. 2014).
Alternatively, the Court may overturn an agency's decision under the abuse of discretion standard if the IHO failed to justify his or her decision. "[A]n agency must cogently explain why it has exercised its discretion in a given manner[.]" Motor Vehicle Mfrs. Ass'n , 463 U.S. at 48, 103 S.Ct. 2856. The agency must provide findings and an analysis justifying the decision made. Id. However, an agency's decision need only be "a reasonable, not the best or most reasonable, decision." Nat'l Wildlife Fed'n v. Burford , 871 F.2d 849, 855 (9th Cir. 1989). The IHO's decision must be upheld "[w]here evidence is susceptible of more than one rational interpretation[.]" Sample v. Schweiker , 694 F.2d 639, 642 (9th Cir. 1982).
The Court may grant a motion for summary judgment where no genuine dispute as to a material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, in reviewing an administrative decision under the APA, the Court's function "is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985). The agency, not the Court, is the fact-finder. See id. Therefore, "summary judgment is the appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did." Id. at 770 ; see also Burnside v. Office of Navajo and Hopi Relocation , No. CV-15-08233-PCT-PGR, 2017 WL 4284576, at *7 (D. Ariz. Sept. 27, 2017) ("In the APA context, summary judgment is the mechanism through which the reviewing court determines as a matter of law whether the evidence in the administrative record reasonably permitted the agency to make the decision it did."). D. ANALYSIS
To qualify for relocation benefits, "the head of household and/or immediate family must have been residents on December 22, 1974, of an area partitioned to the Tribe of which they were not members." 25 C.F.R. § 700.147(a). Additionally, an applicant must have been a head of household on or before: (1) the applicant relocated from the HPL (if a Navajo) or the NPL (if a Hopi); or (2) July 7, 1986, whichever is earlier. See 25 C.F.R. §§ 700.69(c), 700.147(e). To be considered a head of household, an applicant must show that she was a "single person who at the time his/her residence on land partitioned to the Tribe of which he/she is not a member actually maintained and supported him/herself[.]" 25 C.F.R. § 700.69(a)(2). The applicant bears the burden of proving his/her head of household status. Id. § 700.147(b).
Ms. Kirk seeks review of the IHO's determination of her head of household status. More specifically, she contends that the IHO's determination that she was not a head of household and thus not entitled to relocation benefits was arbitrary and capricious under the APA and unsupported by substantial evidence in the record. The Court disagrees.
The Court gives great deference to an IHO's witness credibility determinations. Like an administrative law judge ("ALJ"), the IHO is in the unique position to witness the testimony at the hearing. See Sarvia-Quintanilla v. U.S. Immigration & Naturalization Serv. , 767 F.2d 1387, 1395 (9th Cir. 1985) ("[The ALJ] alone is in a position to observe [a witness's] tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He is ... uniquely qualified to decide whether [a witness'] testimony has about it the ring of truth."). A court analyzing an IHO's credibility determination will only overturn such a determination where the IHO did not provide specific and cogent reasons supported by substantial evidence to do so. De Valle v. Immigration and Naturalization Serv. , 901 F.2d 787, 792 (9th Cir. 1990) (citing Vilorio-Lopez v. Immigration and Naturalization Serv. , 852 F.2d 1137, 1141 (9th Cir. 1988) ). Minor inconsistencies that go to the heart of applicant's claim, like here, will support an adverse credibility determination. Kaur v. Gonzales , 418 F.3d 1061, 1064 (9th Cir. 2005).
Here, the IHO seemingly based his determination of Ms. Kirk's status as head of household upon a careful evaluation of the witnesses' testimony at the hearing. More specifically, the IHO explained his witness credibility findings in finding Ms. Kirk not entitled to relocation benefits. In addition to inconsistencies within each witness's own testimony, the IHO also highlighted inconsistencies between the various witnesses' statements. Moreover, the additional facts regarding Ms. Kirk's family circumstances before June 2, 1986 further suggest that the witnesses' statements were not credible. These inconsistencies provide a clear and convincing reason for the IHO to discredit each witness' statements, specifically as they relate to whether Ms. Kirk worked at the 1985 Summer Youth Program. As stated above, these credibility determinations are given great deference where the IHO offers a "specific, cogent reason" for discrediting them as he did here. See Sarvia-Quintanilla , 767 F.2d at 1395. Accordingly, the Court finds that the IHO's credibility determinations for Ms. Kirk, Ms. Yazzie, and Ms. Begay are supported by evidence in the record. Moreover, the Court also finds that the IHO's determination as to Ms. Kirk's status as a head of household based on his proper weighing of each witness' credibility is not arbitrary and capricious, but rather, is supported by substantial evidence in the record.
Accordingly,
IT IS ORDERED denying Plaintiff's Motion for Summary Judgment (Doc. 35) and granting ONHIR's Cross-Motion for Summary Judgment (Doc. 40).