NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSITA GEORGE, No. 19-17153
Plaintiff-Appellant, D.C. No. 3:17-cv-08200-DLR
v.
MEMORANDUM*
OFFICE OF NAVAJO AND HOPI INDIAN
RELOCATION, an Administrative Agency
of the United States,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted August 10, 2020
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
Rosita George appeals the district court’s grant of summary judgment in
favor of the Office of Navajo and Hopi Indian Relocation (“ONHIR”). We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
George is a fifty-five-year-old Navajo woman who was forced to relocate
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
from her home on the reservation after the land was court-partitioned pursuant to
the Navajo-Hopi Land Settlement Act of 1974. George is entitled to relocation
benefits under the Act and pertinent regulations if she can show that she (1) resided
on Hopi court-partitioned land on December 22, 1974 and (2) was the “head of
household” on or before July 7, 1986.1 25 C.F.R. §§ 700.147(a), (e). Only the
second requirement—the “head of household” status—is at issue in this appeal.
Federal regulations define “head of household” as an “individual who speaks
on behalf of the members of the household and who is designated by the household
members to act as such.” Id. § 700.69(b). A single applicant can constitute a
household if the applicant shows that she “actually maintained and supported . . .
herself.” Id. § 700.69(a)(2). The regulations do not otherwise define self-
supporting status.
In 2009, George applied for relocation benefits with ONHIR. George noted
in her application that she neither was married nor had any children as of July 7,
1986, but that she held a variety of jobs from 1984 through 1986, including a “self-
employment” job in 1985 selling Kachina dolls for which she earned $1,500.
ONHIR denied George’s application on the basis that she failed to show “head of
1
Pursuant to 25 C.F.R. § 700.69(c), a Navajo applicant must establish she was the
head of household at the time she was forced to relocate. Here, there is no dispute
that July 7, 1986 is the applicable date for the head-of-household determination.
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household” status entitling her to benefits. Specifically, ONHIR concluded that
George failed to provide documentation corroborating her claim that she earned
cash income from the sale of Kachina dolls in 1985. Without this income from
1985, George failed to establish yearly earnings of $1,300 and, therefore, failed to
show that she was self-supporting by July 7, 1986.
George appealed the agency’s determination. After an appeal hearing, the
hearing officer found that George’s and her aunt’s testimony about their
employment selling Kachina dolls was not credible and was unreliable. The
hearing officer in turn concluded that George’s “claim of being a self-supporting
head of household before July 7,1986 [was] not supported by a preponderance of
credible evidence” and denied the appeal.
George then filed the instant suit against ONHIR pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06. After cross-motions
for summary judgment, the district court granted summary judgment to ONHIR
and affirmed the agency’s determination.
We review the district court’s grant of summary judgment de novo, applying
the same standard of review under the APA employed by the district court. Walker
v. Navajo-Hopi Indian Relocation Comm’n, 728 F.2d 1276, 1278 (9th Cir. 1984).
Here, the applicable standard is whether the denial of benefits was “arbitrary,
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capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
The hearing officer concluded that George failed to establish she was self-
supporting because she offered no credible or reliable evidence of her employment
selling Kachina dolls in 1985. However, George’s application and testimony on
appeal were not limited to evidence about George’s income from the sales of
Kachina dolls. For example, George offered evidence that, by July 7, 1986, she
stopped living with her extended family, lived in an apartment that she shared with
a roommate, and was employed by Coconino County. The hearing officer
acknowledged some of these additional factors in his findings of fact but did not
evaluate how this relevant evidence impacted the officer’s ultimate conclusions. The
hearing officer also limited his adverse credibility findings to the testimony about
the sales of Kachina dolls.
In its briefing and at oral argument, ONHIR agreed that the $1,300 income
threshold is not an absolute rule, and that an applicant who earns less than $1,300 in
yearly earnings may qualify as self-supporting under the regulations if other
evidence establishes that the applicant is self-supporting. Similarly, ONHIR’s
internal memoranda states that “[a]rtificial income levels are not sufficient to
determine self-supporting status.” Therefore, the hearing officer erred in failing to
evaluate any of the evidence other than the testimony about the income from selling
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Kachina dolls. See Cal. Energy Comm’n v. Dep’t of Energy, 585 F.3d 1143, 1150–
51 (9th Cir. 2009) (agency action is arbitrary and capricious if the agency “failed to
consider an important factor or aspect of the problem” or “failed to articulate a
rational connection between the facts found and the conclusions made”). This is
particularly true here, where, according to ONHIR’s own calculations, George
showed documented proof of income of approximately $1,100 from January to July
7, 1986—only a few hundred dollars shy of the $1,300 threshold. In addition, the
administrative record shows that George was not considered a dependent for
purposes of her father’s relocation-benefits determination. We therefore remand the
case to the district court with instructions to remand the case to the agency for the
limited purpose of weighing and considering this evidence in the first instance. See
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“[I]f the agency has
not considered all relevant factors . . . the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.”). We express no view as to the proper outcome on remand.
VACATED and REMANDED with instructions. Each party shall bear its
own costs.
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