NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LELAND TODICHEENEY, 

Plaintiff-Appellant, 

 v. 

OFFICE OF NAVAJO AND HOPI INDIAN 

RELOCATION, an administrative agency of 

the United States, 

Defendant-Appellee.

No. 22-16042 

D.C. No. 3:21-cv-08003-MTL

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Michael T. Liburdi, District Judge, Presiding

Argued and Submitted November 7, 2023

Phoenix, Arizona

Before: HAWKINS and COLLINS, Circuit Judges, and SEEBORG,** District 

Judge. Dissent by Judge COLLINS.

Leland Todicheeney appeals the district court’s grant of summary judgment 

to the Office of Navajo & Hopi Indian Relocation (ONHIR) affirming the 

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Richard Seeborg, Chief United States District Judge 

for the Northern District of California, sitting by designation.

FILED

APR 11 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

ONHIR’s denial of his application for relocation benefits. We review de novo the 

district court’s grant of summary judgment. Brunozzi v. Cable Commc’ns, Inc., 851 

F.3d 990, 995 (9th Cir. 2017). We review the ONHIR’s decision to determine if it 

was “arbitrary, capricious, an abuse of discretion, not in accordance with law, or 

unsupported by substantial evidence.” Bedoni v. Navajo-Hopi Relocation Comm’n, 

878 F.2d 1119, 1122 (9th Cir. 1989); see also 5 U.S.C. § 706(2). We have 

jurisdiction under 28 U.S.C. § 1291, and we vacate and issue a limited remand.

Todicheeney is an enrolled member of the Navajo Nation who grew up in 

the Fingerpoint Valley in the Teestoh Chapter area. After court-partitioning 

pursuant to the Navajo-Hopi Settlement Act of 1974, Todicheeney and his family 

were required to relocate from their land. Todicheeney is entitled to relocation 

benefits under the Settlement Act if he can show he (1) resided on Hopi courtpartitioned land on December 22, 1974, and (2) was a “head of household” on or 

before July 7, 1986. See 25 C.F.R. § 700.147(a), (e). Only the second question—

whether Todicheeney qualified as a “head of household”—is contested on appeal. 

A single applicant can constitute a head of household if the applicant shows he 

“actually maintained and supported” himself. Id. § 700.69(a)(2). Earnings of 

$1,300 per year are sufficient to make out a prima facie showing of self-support. 

The $1,300 threshold is not an absolute rule, and an applicant who makes less than 

$1,300 may still qualify as self-supporting based on other evidence.
3 

In 2009, Todicheeney applied for relocation benefits. The ONHIR denied 

Todicheeney’s application, finding he was not a “head of household” when he 

moved off the Hopi Partitioned Lands (HPL) in June 1980 because he was not selfsupporting as of that date. The ONHIR noted Todicheeney’s Social Security 

earnings statement did not show earnings of $1,300 per year until many years after 

he moved off the HPL. Todicheeney appealed the ONHIR’s determination. The 

Independent Hearing Officer (IHO) who heard Todicheeney’s appeal found 

Todicheeney failed to meet his burden to show he was a self-supporting head of 

household prior to June 1980 and, therefore, failed to establish his entitlement to 

relocation benefits. Todicheeney then filed the instant suit against the ONHIR in 

district court pursuant to the Administrative Procedure Act. The district court 

granted summary judgment to the ONHIR and affirmed the agency’s 

determination.

The IHO denied Todicheeney relocation benefits largely because of

Todicheeney’s failure to provide documentary evidence supporting his claimed 

wages working for Emmett Kindle, a federal contractor, and after finding 

Todicheeney’s testimony, along with the testimony of his two witnesses, not 

credible. In so doing, the IHO made several errors. First, the IHO erred when he 

refused, without explanation, to credit Todicheeney’s testimony, or the testimony 

of Todicheeney’s sister or uncle, that Todicheeney had several income streams 
4 

during the relevant years in addition to his work for Kindle. 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 where the agency fails to “consider an important 

factor or aspect of the problem”). The IHO heard testimony about how 

Todicheeney (1) earned significant income from herding sheep and (2) earned 

other income from hauling wood and water for neighbors during the relevant years. 

Todicheeney testified he would earn $200 to $300 per month by sheepherding in 

different areas of the Reservation (including in places like Greasewood, Dilkon, 

and Forest Lake) and would herd sheep for up to six months out of the year. 

Todicheeney also testified he earned between $20 and $50 hauling wood and water 

for neighbors approximately every two weeks when they received their checks. 

Cheryl Todicheeney corroborated this testimony.

Nevertheless, the IHO did not credit any testimony from Todicheeney or 

either witness that Todicheeney made any income sheepherding or performing odd 

jobs. The IHO held that because “there [was] no documentation to support 

applicant’s claims of income earned more than 30 years ago, [his] oral 

recollections about any money he earned [was] fundamentally flawed and wholly 

incredible.” To the extent the IHO declined to consider testimony regarding 

Todicheeney’s sheepherding or work for neighbors solely based on a lack of 

corroborating physical documentation and without providing specific, non-
5 

conclusory reasons as to why that testimony was not otherwise credible, this was 

error. The IHO should have calculated how much income Todicheeney earned 

from these sources of income and factored this result into his analysis of whether 

Todicheeney was self-supporting. Indeed, the ONHIR may accept undocumented 

income when determining whether the $1,300 threshold was met given that 

individuals on the HPL often work odd jobs to support themselves and for which 

no documentation exists. See, e.g., O’Daniel v. ONHIR, No. 07-354-PCT-MHM, 

2008 WL 4277899, at *5 (D. Ariz. Sept. 18, 2008). The IHO did not explain why 

the fact Todicheeney earned certain types of undocumented income “more than 30 

years ago” should be counted against him in this instance, but that is precisely what 

he did when he found Todicheeney “not a credible witness about any of his 

claimed employment or earnings” because “no records exist.”

Second, while the IHO has discretion to discount claimed earnings about 

informal work where he finds relevant testimony not credible, the IHO must offer 

specific explanations for such findings and then explain how that incredibility 

bears on the relevant claimed income. See Ceguerra v. Sec’y of Health & Human 

Servs., 933 F.2d 735, 738 (9th Cir. 1991) (“When the decision of an ALJ rests on a 

negative credibility evaluation, the ALJ must make findings on the record and must 

support those findings by pointing to substantial evidence on the record.”). Several 

of the IHO’s negative credibility findings in this case were not supported by 
6 

substantial evidence. The IHO, for instance, declined to find Todicheeney earned 

income sheepherding or working odd jobs on the reservation because he found 

other testimony about Todicheeney’s work for Kindle inconsistent or unreliable

but without explaining why Todicheeney’s testimony about sheepherding and odd 

jobs was not credible. Similarly, the IHO discounted all of Cheryl Todicheeney’s 

testimony about “any amounts of money [Todicheeney] earned from any of his 

activities helping neighbors,” but never explained why Cheryl’s testimonial 

inconsistencies about Todicheeney’s work for Kindle meant she was not credible 

as to Todicheeney’s non-Kindle-related income streams.

The IHO discounted (to $0) Todicheeney’s claimed income from working 

for Kindle based on the absence of otherwise expected documentation, testimonial 

inconsistencies, and Todicheeney’s failure to reference this employment for Kindle 

in his benefits application. The IHO reasoned that because Kindle was a federal 

contractor, Todicheeney’s earnings from this work should have been—but were

not—reflected in his Social Security earnings statements. These may have been 

valid reasons to discount Todicheeney’s claimed income from Kindle. That said, 

the IHO should have also considered the possibility Todicheeney’s work for 

Kindle was not part of Kindle’s federal contract but instead was the type of

informal work common on the HPL. This is particularly so given Todicheeney’s 

testimony to the IHO that he never did “any paperwork” to document his work for 
7 

Kindle at the time of his employment. The IHO should have also considered that

while Todicheeney did not specifically mention working for Kindle on his benefits 

application, he was wholly reliant on his sister, Cheryl, to interpret and fill out his 

application. 

Third, the IHO failed to consider consistent testimony from Todicheeney 

and his sister about how Todicheeney lived apart from his parents in his own 

hogan or on job sites for a significant portion of each year. The IHO found in his 

“Conclusions of Law” that Todicheeney “remained a dependent minor, living with 

his parents” in June 1980. Cheryl Todicheeney, though, testified that her brother

lived apart from their parents for a number of months each year. Todicheeney 

confirmed in his testimony he lived “next door” to his parents. The IHO 

mischaracterized Cheryl’s testimony when he found she testified that Todicheeney 

lived with his parents without considering her testimony that he lived apart from 

his parents for a large portion, excluding winters, of each year. Whether 

Todicheeney lived independently from his parents is relevant to whether he was 

self-supporting (regardless of whether his income exceeded $1,300 per year), and 

the IHO should have considered testimony offered on this point.

We therefore remand the case to the district court with instructions to 

remand the case to the agency so that the IHO may consider how much money 

Todicheeney earned from sheepherding and completing odd jobs for neighbors
8 

during the relevant years. 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.”). The IHO should also consider whether there is an 

evidentiary basis to credit Todicheeney with earning some income from Kindle—

even if not $600 per month—to the extent this work may have been informal, 

undocumented work not officially part of Kindle’s federal contract. Finally, the 

IHO should consider the fact Todicheeney lived in a separate structure from his 

parents for significant periods of time during the relevant years and factor that 

evidence into determining whether, independently of any income-related

determination, Todicheeney was self-supporting. We express no view as to the 

proper outcome on remand.

VACATED and REMANDED with instructions.
Leland Todicheeney v. Office of Navajo and Hopi Indian Relocation, No. 22-16042

COLLINS, Circuit Judge, dissenting:

In setting aside the decision of the Independent Hearing Officer (“IHO”) that 

Appellant Leland Todicheeney was not entitled to relocation benefits from the 

Office of Navajo and Hopi Indian Relocation (“ONHIR”), the majority repeatedly 

disregards the applicable deferential standard of review that applies to such 

administrative determinations. Because the IHO’s decision applied the correct 

legal standards and is supported by substantial evidence, I would affirm the district 

court’s judgment upholding that decision. I respectfully dissent.

I

Under §§ 14 and 15 of the Navajo Hopi Land Settlement Act of 1974, Pub 

L. No. 93-531, 88 Stat. 1712 (Dec. 22, 1974), as amended (the “Settlement Act”),1

the ONHIR is authorized to make certain monetary payments to a Navajo or Hopi 

“head of household” who relocates, after the partition of the area previously jointly 

used by the Navajo Nation and the Hopi Tribe, from land that has been partitioned 

to the other tribe. Under the applicable regulations (which neither side challenges 

here), a “single person” may constitute a “household” if he or she “at the time [of] 

1 This statute is no longer classified to the current version of the United States 

Code. The current version of the statute is available on the website of the 

Government Publishing Office at https://www.govinfo.gov/content/pkg/COMPS13674/pdf/COMPS-13674.pdf.

FILED

APR 11 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

his/her residence on land partitioned to the Tribe of which he/she is not a member 

actually maintained and supported him/herself or was legally married and is now 

legally divorced.” 25 C.F.R. § 700.69(a)(2) (emphasis added).2 That single person 

would then obviously be the “head” of that one-person household. Id. § 700.69(b). 

In fixing the point in time at which this latter determination is to be made, the 

regulation specifies that “the individual must have been a head of household as of 

the time he/she moved from the land partitioned to a tribe of which they [sic] were 

not a member,” id. § 700.69(c), which date cannot be later than July 7, 1986, id. 

§ 700.147(e). The regulations further state that, to be eligible for any benefits, any 

persons claiming to be a “head of household” must have been “residents on 

December 22, 1974”—the date of enactment of the Settlement Act—“of an area 

partitioned to the Tribe of which they were not members.” Id. § 700.147(a). And, 

finally, the regulations also specify that “[i]ndividuals are not entitled to receive 

separate benefits if it is determined that they are members of a household which 

has received benefits.” Id. § 700.147(d). 

Here, there is no dispute that, on December 22, 1974, Todicheeney was a 

Navajo resident of a portion of the joint use area that was partitioned to the Hopi 

Tribe (“Hopi Partitioned Lands” or “HPL”). It is also undisputed that the date on 

2 As shown, the regulation is actually missing the word “of,” but I agree with 

Todicheeney (whose brief unwittingly adds the “of” without brackets) that the 

word should be there and that its omission was a scrivener’s error.
3

which Todicheeney moved from the HPL was June 1980. His parents relocated at 

the same time, and they “were certified eligible for relocation benefits.” 

Accordingly, Todicheeney would be eligible for benefits only if, rather than being 

a member of his parent’s household, he instead “actually maintained and 

supported” himself as of June 1980. 

As ONHIR states in its answering brief, “ONHIR has accepted that an 

individual applicant establishes a prima facie case that the applicant is selfsupporting upon a showing that the applicant has earned $1300 in a year prior to 

moving to the land of the other Tribe as part of a subsistence way of life on the 

HPL.” As summarized by the IHO, Todicheeney’s claim that he met the $1,300 

annual income level was based on the following two categories of claimed income: 

(1) for 10 years beginning in 1978, he assertedly worked for Emmett Kindle 

“doing brush pilings” for three months each fall, earning $300 every two weeks; 

and (2) he performed work “helping elderly neighbors with their livestock and 

hauling water and wood for which he was paid $300.00 per month.” The IHO 

concluded that, based on the record evidence, Todicheeney had failed to 

substantiate his claimed income; that he was not a “self-supporting head of 

household” as of June 1980; and that he was instead a “dependent” who was 

“living with his parents.” 
4

II

We review the IHO’s determination that Todicheeney was not selfsupporting only for substantial evidence, which “means—and means only—‘such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.’” Biestek v. Berryhill, 587 U.S. 97, 139 S. Ct. 1148, 1154 (2019) 

(citation omitted). And where there are two permissible readings of the evidence, 

we cannot reject the agency’s view and substitute our own. INS v. Elias-Zacarias, 

502 U.S. 478, 481 n.1 (1992); NLRB v. Walton Mfg. Co., 369 U.S. 404, 405 

(1962). In my view, the IHO’s conclusions here are supported by substantial 

evidence.

A

In particular, the IHO permissibly concluded that the witness testimony that 

Todicheeney offered in support of his claimed work for Kindle was lacking in 

credibility. As the IHO explained, the work allegedly done for Kindle related to 

Kindle’s status as a “Federal contractor,” and Kindle therefore would have been 

required to maintain a variety of written records, and such income would have 

shown up in Todicheeney’s record of earnings with the Social Security 

Administration. The absence of such records, the IHO concluded, suggested that 

the work never occurred. The IHO also noted that this work would have been the 

most significant income Todicheeney had during the relevant time period, and yet 
5

it was not mentioned anywhere on his benefits application, which referenced only 

the occasional work he did from “1977–78” as a “Handyman, Sheepherder, etc.” 

The IHO also concluded that the supporting testimony of Leroy Yazzie—an uncle 

who allegedly worked together with Todicheeney for Kindle—was not credible 

because (1) he too lacked any of the documentation that should have been 

generated by Kindle, as a federal contractor; and (2) Yazzie’s “description of the 

work and the locations at which he and [Todicheeney] supposedly worked” 

differed materially from Todicheeney’s testimony. Likewise, the IHO concluded 

that Todicheeney’s sister’s testimony about his employment was not credible 

because she gave inconsistent testimony about the particular years and length of 

time that Todicheeney worked for Kindle. I might have weighed any or all of 

these points differently if I had been the trier of fact. Indeed, were I the trier, I 

probably would not give much weight to the fact that Todicheeney mentioned 

more work locations than Yazzie did, nor would I attach much significance to what 

seem to me to be arguably understandable discrepancies about the exact dates and 

timeframes concerning events that occurred 30 or more years before the hearing. 

But, considered as a whole, the IHO’s articulated reasons are based on a 

permissible reading of the record evidence, and they are sufficient to support the 

IHO’s conclusions. As such, those conclusions are supported by substantial 

evidence and cannot be set aside. 
6

In finding that the IHO erred on this score, the majority states that the IHO 

did not adequately consider (1) “the possibility Todicheeney’s work for Kindle was 

not part of Kindle’s federal contract but instead was the type of informal work 

common on the HPL”; and (2) the possibility that the Kindle work was omitted 

from Todicheeney’s application because “he was wholly reliant on his sister, 

Cheryl, to interpret and fill out his application.” See Memo. Dispo. at 6–7. But 

these are simply potential arguments as to why the IHO should have weighed the 

evidence differently and should have drawn different inferences and conclusions. 

As such, they provide no basis for setting aside the IHO’s determination. See 

Elias-Zacarias, 502 U.S. at 481 n.1; Walton Mfg. Co., 369 U.S. at 405. Indeed, 

given that Todicheeney’s own testimony was that the work he did for Kindle was

under a Forest Service contract and that Forest Service officials would “come 

around” to “check” the work and “saw what we were doing,” the majority’s 

remand with instructions to consider a contrary hypothesis is simply unfathomable. 

And to the extent that the majority suggests that the IHO was affirmatively

required to specifically mention these competing explanations in his written ruling, 

there is no support for such a view. As the majority itself notes, all that is required 

on this score is that the agency make adequate findings for the conclusions it draws 

and that those findings be supported by substantial evidence. See Memo. Dispo. at 

5. For the reasons I have explained, that standard is met here.
7

B

Substantial evidence also supports the IHO’s conclusion that Todicheeney 

did not establish self-sufficiency based on the occasional work he did for 

neighbors. As noted, the IHO had made a general adverse credibility 

determination as to Todicheeney, his sister, and Yazzie, and he also noted that 

there was a lack of any supporting documentation as to this further alleged source 

of income. Once again, these determinations are based on a permissible reading of 

the evidence, and we therefore cannot set them aside.

In reaching a contrary conclusion, the majority states that the IHO was 

required to make separate credibility determinations with respect to these two 

distinct claimed categories of income. See Memo. Dispo. at 3–6. The majority 

points to nothing that supports such a rule, which seems contrary to the well-settled 

(and common-sense) maxim “falsus in uno, falsus in omnibus.” Enying Li v. 

Holder, 738 F.3d 1160, 1162 (9th Cir. 2013) (holding that “material 

inconsistencies in testimony regarding one claim support an adverse credibility 

determination on another claim”). Whether and how to apply such considerations 

in weighing credibility is for the trier of fact. Here, it was not unreasonable for the 

IHO, without further explanation, to decide to discount the witnesses’ testimony 

across the board in light of what even the majority grudgingly concedes “may have 

been [a] valid” discounting of the claim that Todicheeney had performed work for 
8

Kindle’s federal contract. See Memo. Dispo. at 6. 

The majority suggests that the IHO may have rejected this additional 

claimed category of income “solely” because there was no documentation to 

support it, but that is not a reasonable reading of the IHO’s decision. See Memo. 

Dispo. at 4 (emphasis added). As I have explained above, that decision clearly 

relied on both the view that the witnesses were not credible and that there was a 

lack of supporting documentation. Todicheeney’s claims that the IHO committed 

legal error by assertedly applying such a per se rule fail for the same reason.

C

Finally, the majority suggests that, “regardless of whether [Todicheeney’s] 

income exceeded $1,300 per year,” the IHO should have considered whether 

Todicheeney was self-supporting by “liv[ing] apart from his parents in his own 

hogan or on job sites for a significant portion of each year.” See Memo. Dispo. at 

7 (emphasis added). Nowhere in his opening brief did Todicheeney claim that he 

had established self-support even if he did not earn $1,300 a year. Any such 

contention is therefore forfeited. See Independent Towers of Wash. v. Washington, 

350 F.3d 925, 929 (9th Cir. 2003).3

3 The majority properly does not rely on Todicheeney’s argument, based in part on 

multiple extra-record documents, that the IHO’s decision in this case is, in some 

relevant sense, irreconcilable with the IHO’s decision in other cases. As the above 

discussion shows, each case turns on the specific facts and arguments in the 

administrative record of that case. In all events, Todicheeney has not shown any 
9

* * *

For the foregoing reasons, I respectfully dissent. 

basis for setting aside the IHO’s decision here.