Torpey v. Office of Navajo and Hopi Indian Relocation

Filing 22

ORDER granting 11 Motion to Dismiss Count II of the Complaint. Signed by Judge Douglas L Rayes on 6/28/2018. (MMO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Veronica Torpey,
Plaintiff,

10
11

ORDER

v.

12

No. CV-17-08184-PCT-DLR

Office of Navajo and Hopi Indian
Relocation,

13
14

Defendant.

15
16

Plaintiff Veronica Torpey seeks judicial review of the administrative decision by

17

Defendant Office of Navajo and Hopi Indian Relocation (ONHIR) denying Plaintiff

18

relocation benefits under the Navajo-Hopi Settlement Act. (Doc. 1.) Before the Court is

19

ONHIR’s motion to dismiss Count II of Plaintiff’s Complaint for lack of subject matter

20

jurisdiction. (Doc. 11.) The motion is fully briefed, and neither side requested oral

21

argument. (Docs. 16, 24.) For the following reasons, Defendant’s motion is granted.

22

I. Background

23

In 1882, a reservation was established in northeastern Arizona for the Hopi Nation

24

and “such other Indians as the Secretary of Interior may see fit to settle thereon.” Bedoni

25

v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1121 (9th Cir. 1989).

26

Members of the Navajo Nation subsequently settled on the reservation alongside the

27

Hopi. Id. “The Hopi and Navajo [Nations] coexisted on the 1882 reservation for 75

28

years, but became entangled in a struggle as to which [nation] had a clear right to the

1

reservation lands.” Id. In 1962, this district court found that the two tribes held joint,

2

undivided interests in most of the reservation, which was called the “joint use area”

3

(JUA). Id.

4

Twelve years later, after establishment of the JUA failed to solve inter-tribal

5

conflicts over the land, Congress passed the Navajo-Hopi Settlement Act in 1974. Id.

6

The Act authorized the district court to make a final partition of the reservation after

7

mediation efforts between the nations had failed. See Sekaquaptewa v. MacDonald, 626

8

F.2d 113, 115 (9th Cir. 1980).

9

predecessor, the Navajo-Hopi Relocation Commission, to provide services and benefits to

10

help relocate residents who were located on lands allocated to the other nation as a result

11

of the court-ordered partition. See Bedoni, 878 F.2d at 1121-22, 25 U.S.C. § 640d-11.

12

To be eligible for relocation benefits, a Navajo applicant bears the burden of

13

demonstrating that he or she was (1) a legal resident on the Hopi Partitioned Lands (HPL)

14

on December 22, 1974, and (2) a head of household on or before July 7, 1986. 25 C.F.R.

15

§ 700.147.

The Act also directed creation of the ONHIR’s

16

In 1986, ONHIR closed the application process, and it remained closed to new

17

applicants for nineteen years. See 51 Fed. Reg. 19169 (May 28, 1986). In 2005,

18

acknowledging the number of late applications, ONHIR began accepting benefit

19

applications from individuals who applied after the 1986 deadline or had not previously

20

been informed of their eligibility. 25 C.F.R. § 700.138. This district court later held that

21

ONHIR’s fiduciary duty to displaced tribe members before 1986 had included an

22

affirmative duty to attempt to contact and inform potentially eligible individuals of their

23

right to apply for benefits. Herbert v. ONHIR, No. 06-CV-3014-PCT-NVW, 2008 WL

24

11338896, at *1 (D. Ariz. Feb. 27, 2008).

25

II. Procedural History

26

In August 2010, Plaintiff, a member of the Navajo Nation, applied for relocation

27

benefits. (Doc. 1 ¶ 24.) In August 2012, ONHIR denied her application, finding that she

28

was not a head of household (HOH) when she relocated from the HPL in 1979. (¶ 25.)

-2-

1

In September 2012, Plaintiff timely appealed ONHIR’s decision. (¶ 26.) In July 2015,

2

an independent hearing officer (IHO) held an appeal hearing. (¶ 28.)

3

In October 2015, the IHO issued an opinion upholding the ONHIR’s denial,

4

finding that Plaintiff’s testimony about her HOH status in 1979 was not credible because

5

she lacked documentary proof of her income.

6

ONHIR’s final decision when it issued a Final Agency Action on November 3, 2015. (¶

7

33.) Plaintiff then commenced this action for judicial review under the Administrative

8

Procedure Act (APA), 5 U.S.C. § 701 et. seq. (¶¶ 34-47.) In Count I, Plaintiff appeals

9

ONHIR’s denial of benefits. (¶¶ 34-37.) In Count II, Plaintiff alleges ONHIR breached a

10

trust obligation by abrogating its duty to attempt to contact and inform her of her right to

11

apply before 1986. (¶¶ 38-47.)

(¶ 30.)

The IHO’s ruling became

12

ONHIR argues it is entitled to dismissal of Count II of the Complaint for lack of

13

subject matter jurisdiction for two reasons: (1) there is no final agency action on the

14

issue, and (2) Plaintiff has not fulfilled the requirements of prudential exhaustion. (Doc.

15

11.) Because the Court agrees that there is no final agency action, it need not reach the

16

issue of prudential exhaustion.

17

III. Discussion

18

“A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)

19

may attack either the allegations of the complaint as insufficient to confer upon the court

20

subject matter jurisdiction, or the existence of subject matter jurisdiction in fact.”

21

Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006). “With a 12(b)(1)

22

motion, a court may weigh the evidence to determine whether it has jurisdiction.” Autery

23

v. United States, 424 F.3d 944, 956 (9th Cir. 2005). The burden of proof is on the party

24

asserting jurisdiction to show that the court has subject matter jurisdiction. See Indus.

25

Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).

26

involves a court’s power to hear a case,” subject matter jurisdiction “can never be

27

forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002).

28

“[B]ecause it

Unless Congress specifies otherwise, the district court reviews agency proceedings

-3-

1

pursuant to the APA. 5 U.S.C. § 704; see Herbert v. ONHIR, No. 06-CV-3014-PCT-

2

NVW, 2008 WL 11338896, at *5 (D. Ariz. Feb. 27, 2008). A reviewing court may

3

reverse an ONHIR decision if it is arbitrary, capricious, an abuse of discretion, contrary

4

to law, or unsupported by substantial evidence. 5 U.S.C. § 706(2)(A), (E); see Bedoni,

5

878 F.2d at 1122. The court, however, may only review an issue that ONHIR has ruled

6

on with a “final agency action.” 5 U.S.C. § 704 (provides for judicial review of “final

7

agency action”); 25 C.F.R. § 700.303 (“No decision . . . subject to appeal to the

8

Commission shall be considered final agency action subject to judicial review . . . .”);

9

Reid v. Engen, 765 F.2d 1457, 1460 (9th Cir. 1985) (noting that “[a]s a general rule, if

10

[plaintiff] fails to raise an issue before an administrative tribunal, it cannot be raised on

11

appeal from that tribunal.”). Stated differently, the district court lacks jurisdiction to rule

12

on issues related to an administrative action if the issues were not raised during the

13

administrative proceedings. See Howard v. FAA, 17 F.3d 1213, 1219 (9th Cir. 1994).

14

Plaintiff never raised a breach of fiduciary duty claim at the agency level. (A.R.

15

35.) Because this claim was never before the ONHIR, it never issued a final agency

16

action on the matter.1

17

Herbert, 2008 WL 11338896, at *6 (“The court lacks jurisdiction to review agency

18

decisions based on issues that were not raised in the administrative proceedings.”).

Without a final agency action, this Court lacks jurisdiction.

19

Plaintiff attempts to circumvent the lack of a final agency action by recasting it as

20

an issue of exhaustion of administrative remedies. Specifically, Plaintiff argues that

21

exhaustion of administrative remedies is not a prerequisite to filing suit because the

22

enabling statute, the Navajo-Hopi Settlement Act, did not expressly mandate as much,

23

and therefore this Court has jurisdiction. (Doc. 16 at 5.) Plaintiff’s argument, however,

24

incorrectly treats statutory exhaustion and final agency action as one in the same.

25

Statutory exhaustion requires an appeal to a “superior agency authority” where the

26
1

27
28

Although in rare cases and under “exceptional circumstances,” district courts
may exercise jurisdiction over a discrete issue where the plaintiff failed to raise that issue
at the administrative agency level, Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir.
1979), no such circumstances exist here.

-4-

1

agency action has already become “final.” Darby v. Cisneros, 509 U.S. 137, 154 (1993).

2

Here, the Court lacks jurisdiction not because Plaintiff failed to exhaust her

3

administrative remedies, but because she never permitted the agency to take a final action

4

in the first place. See 5 U.S.C. § 704. Accordingly,

5
6
7

IT IS ORDERED that Defendant’s motion to dismiss Count II of the Complaint
(Doc. 11) is GRANTED.
Dated this 28th day of June, 2018.

8
9
10
11
12

Douglas L. Rayes
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-