NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED BEGAY, No. 18-15996
Plaintiff-Appellant, D.C. No. 3:16-cv-08268-DJH
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
Diane J. Humetewa, District Judge, Presiding
Submitted May 17, 2019**
San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and BATTAGLIA,*** District
Judge.
Fred Begay appeals the district court’s grant of summary judgment to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
Office of Navajo & Hopi Indian Relocation (“ONHIR”) affirming ONHIR’s denial
of his application for relocation benefits.
We review ONHIR’s determination under the deferential APA standard. See
Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1995). The decision may
be set aside if it is arbitrary, capricious, or unsupported by substantial evidence.
5 U.S.C. § 706(2). “It is well-established that an agency’s action must be upheld,
if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). Begay has the
burden of establishing head of household status. 25 C.F.R. § 700.147(b).
The hearing officer did not err in determining that testimony from Begay, his
employer, and his coworker about Begay’s earnings was not credible. The hearing
officer’s reason—that the testimony was inconsistent—is specific and cogent: the
witnesses indeed gave different estimates of the amount Begay earned and the
number of houses he worked on. Citing Chen v. Ashcroft, 362 F.3d 611, 617 (9th
Cir. 2004), Begay suggests that because the inconsistencies did not go to the heart
of his claim, they cannot support an adverse credibility finding. But the
inconsistencies do go to the heart of his claim, that is, they are directly relevant to
whether Begay earned enough under ONHIR regulations to be considered a head
of household.
Begay argues that the passage of time, language barriers, the cash economy,
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or changes in Begay’s pay could explain the inconsistencies. But we give
substantial deference to an agency’s credibility findings, and even allowing for
some inconsistencies, Begay did not meet his burden.
Similarly, Begay’s other arguments do not overcome the lack of consistent
evidence to establish Begay’s head-of-household status. Contrary to Begay’s
contention, ONHIR did not require him to establish his status with tax returns and
wage statements or other documentation. Instead, the record suggests that ONHIR
would have allowed Begay to establish his status through testimony, if it had been
credible. Testimony about payments Begay received for odd jobs, herding sheep,
and breaking horses, was too limited to suggest that he self-supported through
those activities combined with work for his employer. Moreover, even if we were
to accept Begay’s argument that ONHIR has a trust relationship with applicants,
the requirements of any trust relationship would not alter or override Begay’s
burden to establish his eligibility for benefits under 25 C.F.R. § 700.147(b).
The district court did not err in granting ONHIR’s motion for summary
judgment.
AFFIRMED.
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