George v. Office of Navajo and Hopi Indian Relocation
Filing
23
ORDER granting 15 Motion to Dismiss Count II of the Complaint. (See Order for details.) Signed by Judge Douglas L Rayes on 7/23/2018. (MMO)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Rosita George,
Plaintiff,
10
11
ORDER
v.
12
No. CV-17-08200-PCT-DLR
Office of Navajo and Hopi Indian
Relocation,
13
14
Defendant.
15
16
Plaintiff Rosita George 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. 15.) The motion is fully briefed and neither side requested oral
21
argument. (Docs. 18, 19.) 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 January 2009, Plaintiff, a member of the Navajo Nation, applied for relocation
27
benefits. (Doc. 1 ¶¶ 15, 22.) In October 2009, ONHIR denied her application, finding
28
that she was not a head of household (HOH) when she relocated from the HPL in 1979.
-2-
1
(¶ 23.) In November 2009, Plaintiff timely appealed ONHIR’s decision. (¶ 24.) In
2
August 2013, an independent hearing officer (IHO) held an appeal hearing. (¶ 25.)
3
In November 2013, the IHO issued an opinion upholding the ONHIR’s denial,
4
finding that testimony about Plaintiff’s HOH status in 1979 was not credible because she
5
lacked documentary proof of her income. (Doc. 15 at 5.) The IHO’s ruling became
6
ONHIR’s final decision when it issued a Final Agency Action on December 5, 2013.
7
(Doc. 1 ¶ 33.)
8
Administrative Procedure Act (APA), 5 U.S.C. § 701 et. seq. (¶¶ 33-46.) In Count I,
9
Plaintiff appeals ONHIR’s denial of benefits. (¶¶ 33-36.) In Count II, Plaintiff alleges
10
ONHIR breached a trust obligation by creating a delay in determining Plaintiff’s
11
eligibility status. (¶¶ 37-46.)
Plaintiff then commenced this action for judicial review under the
12
ONHIR argues it is entitled to dismissal of Count II of the Complaint for lack of
13
subject matter jurisdiction because there is no final agency action on the issue due to
14
Plaintiff’s failure to raise the claim at the agency level. (Doc. 15.) Because the Court
15
agrees that there is no final agency action, it need not reach ONHIR’s evidentiary and
16
prudential exhaustion arguments.
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 failed to raise a breach of fiduciary duty claim at the agency level. (A.R.
15
137-169.) Because this claim was never before the ONHIR, it never issued a final
16
agency action on the matter.1 Without a final agency action, this Court lacks jurisdiction.
17
Herbert, 2008 WL 11338896, at *10 (“The court lacks jurisdiction to review agency
18
decisions based on issues that were not raised in the administrative proceedings.”); Tso v.
19
ONHIR, No. 17-CV-8183-PCT-JJT, 2018 WL 3416999, at *2 (D. Ariz. July 12, 2018)
20
(“This Court lacks jurisdiction to adjudicate Plaintiff’s claim because ONHIR has not
21
taken final agency action on the issue.”).
22
“Plaintiff attempts to circumvent the lack of a final agency action by recasting it as
23
an issue of exhaustion of administrative remedies.” Torpey v. ONHIR, No. 17-CV-8184-
24
PCT-DLR, 2018 WL 3159731, at *3 (D. Ariz. June 28, 2018). Plaintiff argues that
25
exhaustion of administrative remedies is not a prerequisite to filing suit because 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
enabling statute, the Navajo-Hopi Settlement Act, did not expressly mandate as much,
2
and therefore this Court has jurisdiction.
3
“ONHIR’s misapprehension as to when administrative exhaustion is required as a
4
jurisdictional prerequisite undermines the central premise of its motion.” (Doc. 18 at 7.)
5
Plaintiff’s argument, however, incorrectly treats statutory exhaustion and final agency
6
action as one in the same. Statutory exhaustion requires an appeal to a “superior agency
7
authority” where the agency action has already become “final.” Darby v. Cisneros, 509
8
U.S. 137, 154 (1993). “Here, the Court lacks jurisdiction not because Plaintiff failed to
9
exhaust her administrative remedies, but because she never permitted the agency to take a
10
(Doc. 18 at 6.)
According to Plaintiff,
final action in the first place.” Torpey, 2018 WL 3159731, at *3.
11
Even assuming Plaintiff was correct in asserting that this is an issue of
12
administrative exhaustion, her argument fails. Plaintiff contends the Court should retain
13
subject matter jurisdiction because, first, ONHIR’s administration exhaustion argument
14
should be treated as a facial jurisdictional attack, and second, Count II is “inextricably
15
intertwined” with the merits of Count I. (Doc. 18 at 4-6.)
16
As to her first argument, ONHIR cited to the record to support its contention that
17
Count II was never raised at the administrative level. (Doc. 15 at 5.) Although ONHIR’s
18
citation covers the entire administrative record rather than a specific portion of it, there is
19
no other way to prove a negative. (Doc. 15 at 5.) The Court therefore deems the
20
jurisdictional attack to be factual rather than facial.
21
Next, Plaintiff cites Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc. to
22
discourage the Court from “inappropriate[ly]” dismissing Count II because it is
23
inextricable from Count I. 711 F.2d 138 (9th Cir. 1983). Sun Valley, however, is
24
inapposite. In that case, the trial court inappropriately made a finding on a disputed issue,
25
namely, whether the parties were in a “franchise relationship.” Id. at 139. The court’s
26
finding that there was no such relationship put eight of ten claims outside of the scope of
27
the relevant statute and defeated subject matter jurisdiction. Id. The Ninth Circuit, in
28
reversing, discouraged findings on “genuinely disputed” facts that would affect
-5-
1
jurisdiction. Id. Here, however, there is no genuine dispute that Plaintiff failed to raise
2
the issue in Count II at the administrative level, and dismissal therefore is appropriate.
3
Accordingly,
4
5
6
IT IS ORDERED that Defendant’s motion to dismiss Count II of the Complaint
(Doc. 15) is GRANTED.
Dated this 23rd day of July, 2018.
7
8
9
10
11
Douglas L. Rayes
United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?