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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Esther Kirk, 

Plaintiff, 

v. 

Office of Navajo and Hopi Indian 

Relocation, 

Defendant. 

No. CV-17-08254-PCT-SMB 

ORDER GRANTING DEFENDANTS 

MOTION TO DISMISS COUNT II 

At issue is Defendant Office of Navajo and Hopi Indian Relocation’s (“ONHIR”) 

Motion to Dismiss Count II of the Complaint (Doc. 12, “Mot.”), to which Plaintiff Esther 

Kirk Responded (Doc. 14, “Resp.”), and ONHIR replied (Doc. 16, “Reply”). ONHIR has 

also filed the administrative record. (Doc. 13, the “AR”). Neither party requested oral 

argument on the motion, and the Court does not believe it is necessary to resolve the 

motion. 

I. Background 

This is a Navajo-Hopi Land Settlement Act (the “Settlement Act”) case. 25 U.S. §§ 

640d–640d-31 (repealed 1974); see also Bedoni v. Navajo-Hopi Indian Relocation 

Comm’n, 878 F.2d 1119, 1121–22 (9th Cir. 1989) (explaining the history leading up to the 

Settlement Act); Herbert v. Office of Navajo and Hopi Indian Relocation, CV06-03014-

PCT-NVW, 2008 WL 11338896, at *1 (D. Ariz. Feb. 27, 2008) (same). ONHIR denied 

Ms. Kirk relocation benefits in December 2011. (AR 378). Ms. Kirk’s Complaint alleges 

two counts: (1) ONHIR’s final decision denying eligibility was “unsupported by evidence 
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or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 

(citing 5 U.S.C. § 706 (2)(A), (E)); and (2) ONHIR breached its “fiduciary obligation” to 

her by failing to inform her of relocation benefits and delaying its decision. (Doc. 1, 

“Complaint”). She brings both claims under the Administrative Procedure Act (“APA”), 5 

U.S.C. §§ 701–706. (Complaint at ¶¶ 39, 45). In the Motion, ONHIR argues that this Court 

does not have jurisdiction over Ms. Kirk’s second count because she did not raise it in the 

administrative proceeding and, therefore, there is no “final agency action” to review. 

The relevant facts from the AR and the pleadings are as follows. Ms. Kirk was born 

July 6, 1969. (AR 337). She is a member of the Navajo Nation who relocated from Hopi 

Partition Land (“HPL”) to Navajo Partition Land (“NPL”) on June 2, 1986. (Complaint ¶ 

15; AR 239, 337). She did not apply for relocation benefits prior to the July 7, 1986 

deadline. (AR 23; Resp. at 2). She first contacted ONHIR for relocation benefits in 

February 1991, but she was turned away. (AR 7–12; Resp. at 2). In 2005, ONHIR contacted 

her to inform her that the Office would begin accepting late applicants. (AR 18). Ms. Kirk 

timely applied for Relocation benefits at that time, and ONHIR denied her application on 

December 19, 2005. (AR 36–40; AR 61–64). She then appealed on January 9, 2006. (AR 

66–69; Complaint ¶ 26). On appeal, ONHIR waived the time limits for holding hearings 

and taking final agency action pursuant to 25 C.F.R. § 700.13(b). (AR 73). 

Ms. Kirk’s appeal was heard by the Independent Hearing Officer (“IHO”) on June 

17, 2011. (AR 238). The IHO denied her appeal in August 2011, concluding that Ms. Kirk 

was unable to prove she was a self-supporting head of household when she relocated to the 

NPL. (AR 336–343). She asked the IHO to reconsider his ruling, which he denied on 

September 23, 2011. (AR 372–73). The Executive Director of ONHIR issued a letter on 

December 9, 2011, affirming the denial of benefits. (AR 378). Included in the letter was 

that the Director determined the IHO recommended decision was correct and that the letter 

constituted final agency action in the matter. (AR. 378). 

In her Response, Ms. Kirk argues she was not required to exhaust administrative 

remedies in order to bring this claim, ONHIR cannot rule on its breach of trust, ONHIR is 
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biased, and she raised fiduciary issue before the agency resulting in final agency action. In 

alleging she raised the issue, she points to the IHO’s decision explaining there was no 

written evidence of her 1985 summer employment. (Resp. at 15; AR 342). She also says 

her request for reconsideration raised the delay claim but does not specifically cite to where 

in the request. (Resp. at 15). There is nothing in the IHO’s Findings of Fact, Conclusions 

of Law, and Decision addressing an alleged breach of obligation. (AR 336–343). The same 

goes for his Order denying her request for reconsideration. (AR. 372–73). 

II. Standard of Review 

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a 

claim for lack of subject-matter jurisdiction. “Federal courts are courts of limited 

jurisdiction” and may only hear cases as authorized by the Constitution or Congress. 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Because our 

jurisdiction is limited, it is to be presumed that a cause lies outside of it, and the burden of 

establishing jurisdiction is on the party asserting it. Kokkonen, 511 U.S. at 377. “A motion 

to dismiss for lack of subject mater jurisdiction under Rule 12(b)(1) may attack either the 

allegations of the complaint as insufficient to confer upon the court subject matter 

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

States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006). “With a 12(b)(1) motion, a court may 

weigh the evidence to determine whether it has jurisdiction.” Autery v. United States, 424 

F.3d 944, 956 (9th Cir. 2005). The burden of proof is on the party asserting jurisdiction to 

show that the court has subject matter jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 

912 F.2d 1090, 1092 (9th Cir. 1990). “[B]ecause it involves a court’s power to hear a case,” 

subject matter jurisdiction “can never be forfeited or waived.” United States v. Cotton, 535 

U.S. 625, 630 (2002). 

III. Analysis 

Unless Congress specifies otherwise, we review agency action under the APA, 5 

U.S.C. § 706(2)(A). Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1995). A 

reviewing court can reverse an ONHIR decision if the decision is “arbitrary, capricious, an 
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abuse of discretion, not in accordance with law, or unsupported by substantial evidence.” 

Bedoni, 878 F.2d at 1122. The court can only review “final agency action[s].” 5 U.S.C. § 

704 (providing for judicial review of “final agency actions”); 25 C.F.R. § 700.303 (“No 

decision . . . subject to appeal to the Commission shall be considered final agency action 

subject to judicial review . . . .”). Generally, an agency action is final when it meets two 

conditions: (1) the action is the “consummation of the agency’s decisionmaking process” 

and not “merely tentative or interlocutory” in nature; and (2) it is an action by which “rights 

or obligations have been determined, or from which legal consequences will flow.” Bennett 

v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotation marks and citations omitted). 

Courts will also generally decline to review issues not raised in administrative 

proceedings. Reid v. Engen, 765 F.2d 1457, 1460 (9th Cir. 2004). When a statute requires 

issue exhaustion in administrative proceedings, failure to raise an issue there prevents 

judicial review of that issue. Sims v. Apfel, 530 U.S. 103, 108 (2000); See also Darby v. 

Cisneros, 509 U.S. 137, 147 (1993) (The APA “explicitly requires exhaustion of all intraagency appeals mandated either by statute or by agency rule[.]”). Courts will also 

“regularly” decline to hear issues not raised in the administrative proceedings when an 

agency’s regulations require issue exhaustion in administrative appeals. Id. Requiring issue 

exhaustion prevents plaintiffs from bypassing the administrative scheme. Id.; Gonzalez v. 

Dep’t of Homeland Security, 508 F.3d 1227, 1234 (9th Cir. 2007). Courts have also 

required issue exhaustion in the absence of a statute or regulation. Sims, 530 U.S. at 108. 

As Sims explains, judicially-imposed issue exhaustion is analogous to the rule that 

appellate courts will not consider arguments not raised before trial courts, because it allows 

all parties to offer all the evidence without being surprised on appeal by a final decision 

based on issues for which they have had no opportunity to introduce evidence. Id. at 108–

09 (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941)). Exhaustion also “serves the 

twin purposes of protecting administrative agency authority and promoting judicial 

efficiency. McCarthy v. Madigan, 503 U.S. 140, 145 (1992), superseded by statute on other 

grounds, as recognized in Booth v. Churner, 532 U.S. 731, 740 (2001). 
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Exhaustion recognizes that agencies “ought to have primary responsibility for the 

programs that Congress has charged them to administer,” and allows agencies “the 

opportunity to correct [their] own errors.” Id. “Exhaustion concerns apply with particular 

force when the action under review involves exercise of the agency’s discretionary power 

or when the agency proceedings in question allow the agency to apply its special expertise.” 

Id. Exhaustion principles are also of special concern when flouting of administrative 

process would “weaken an agency’s effectiveness by encouraging disregard of its 

procedures.” Id. 

There are instances where issue exhaustion is not desirable, but “[e]xceptions to 

exhaustion requirements are usually limited, and apply only in extraordinary 

circumstances, such as, when the arbitral process would be futile or would cause the 

plaintiff irreparable injury.” Bd. of Trustees of the Const. Laborers’ Pension Trust for So. 

Ca. v. M.M. Sundt Const. Co., 37 F.3d 1419, 1420–21 (9th Cir. 1994). Another such 

instance is when administrative proceedings are not adversarial in nature. Sims, 530 U.S.

at 109–10 (“Where the parties are expected to develop the issues in an adversarial 

administrative proceeding, it seems to us that the rationale for requiring issue exhaustion 

is at its greatest.”). Courts have also found exceptions when requiring resort to the 

administrative remedy would cause undue prejudice to subsequent court actions, when 

there is doubt the agency can grant effective relief, and when an administrative body is 

“biased or has otherwise predetermined the issue before it.” McCarthy, 503 U.S. at 146–

48. To determine whether exhaustion is required, courts must “balance the interest of the 

individual in retaining prompt access to a federal judicial forum against countervailing 

institutional interests favoring exhaustion.” Id. at 146. 

Recognizing that plaintiffs in Ms. Kirk’s situation have not been persuasive in 

arguing that they are in one of the “extraordinary circumstances” allowing for exception to 

the general rule that courts will not consider issues not raised in administrative proceedings, 

District of Arizona courts have declined to allow a breach of fiduciary duty claim against 

ONHIR on at least four similar occasions. See Torpey v. ONHIR, No. CV-17-08184-PCT-
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DLR, 2018 WL 3159731, at *2–3 (D. Ariz. June 28, 2018); Tso v. ONHIR, No. CV-17-

08183-PCT-JJT, 2018 WL 341699, at *2 (D. Ariz. July 12, 2018); George v. ONHIR, No. 

CV-17-08200-PCT-DLR, 2018 WL 3536733, at *2–3 (D. Ariz. July 23, 2018); Bahe v. 

ONHIR, No. CV-17-08016-PCT-DLR, 2017 WL 6618872, at *6 (D. Ariz. Dec. 28, 2017) 

appeal filed, No. 18-15271 (9th Cir. Feb. 20, 2018). In response, Ms. Kirk argues that 

Herbert v. ONHIR allows a breach of trust claim. CV06-03014-PCT-NVW, 2008 WL 

11338896 (D. Ariz. Feb. 24, 2008). For the reasons that follow, the court agrees that Ms. 

Kirk’s case is similar to Torpey, Tso, Bahe, and George, and she misconstrues Herbert, 

which does not create a claim for breach of fiduciary duty in this scenario. 

1. Ms. Kirk failed to raise the issue of breach of fiduciary duty in the administrative 

proceedings. 

To raise an issue in an administrative proceeding, “a claimant need not raise an issue 

using precise legal formulations, as long as enough clarity is provided that the decision 

maker understands the issue raised.” Lands Council v. McNair, 629 F.3d 1070, 1076 (9th 

Cir. 2010). “[A]lerting the agency in general terms will be enough if the agency has been 

given ‘a chance to bring its expertise to bear to resolve [the] claim.’” Id. (quoting Native 

Ecosystems Council v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002). There is no “brightline standard” to consider whether an issue has been raised with “sufficient clarity to allow 

the decision maker to understand and rule on the issue raised.” Great Basin Mine Watch v. 

Hankins, 456 F.3d 955, 968 (9th Cir. 2006) (quoting Idaho Sporting Congress, Inc. v. 

Rittenhouse, 305 F.3d 957, 965 (9th cir. 2006)). Therefore, courts “must consider 

exhaustion arguments on a case-by-case basis.” Id. 

Ms. Kirk points to two places in the AR where she believes she raised the fiduciary 

duty issue: (1) at the hearing where she explained she could not find employment records 

from 1985 because they were too old; and (2) in her request for reconsideration where she 

said it was unfair to require a person to provide employment records 21 years after 

employment. (Resp. at 15). Having read both her testimony at the hearing and her request 

for reconsideration, the Court is unable to find anything that would alert ONHIR Ms. Kirk 

was alleging a breach of fiduciary duty. 
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To be sure, she did testify that she tried to get employment records, but they were 

unavailable. (AR 269–270). Her request for reconsideration also argued the IHO’s decision 

placed too much emphasis on the absence of work record from long ago. (AR 351). While 

a claimant is not required to “raise an issue using precise legal formulations,” nothing in 

the AR could plausibly rise to the level of alerting the agency that she believed the agency 

breached its fiduciary obligation to her by not contacting her prior to her relocating to the 

NPL. She also failed to argue that ONHIR’s delay in adjudicating relocation claims is why 

she was unable to obtain employment records from 1985. In fact, her own testimony alludes 

to a different conclusion: that they may never have been available. (AR 269). She testified 

that when she attempted to obtain employment records she was told “nothing was being 

saved during those years. That they didn’t have computers back then, everything was kept 

manual and they told me that they might have just shred all those [sic] paperwork.” (AR 

269). 

The AR in this case stands in stark contrast to Herbert, one of the cases on which 

Ms. Kirk heavily relies. In Herbert, the plaintiff alleged in the administrative proceeding 

that ONHIR had an affirmative duty to contact him prior to the July 7, 1986, deadline to 

apply for relocation benefits, and the IHO decided the Commissioner did not “abdicate[] 

his responsibility to locate applicant and persuade him to complete an eligibility 

application.” 2008 WL 11338896 at *5. Because the administrative record in that case 

showed that the issue was decided by the IHO, the court considered whether ONHIR’s 

failure to contact the plaintiff resulted in the denial of relocation benefits. Id. at *5–6. At 

the same time, it declined to consider three similar issues raised by the plaintiff because 

there was no evidence that they had been raised in the administrative proceeding. Herbert

is easily distinguishable from Ms. Kirk’s situation and shows how Ms. Kirk could have 

raised the issue in her hearing (which occurred after Herbert was decided) but failed to do 

so. 

2. Ms. Kirk has failed to show her situation is an exception to the general rule 

requiring exhaustion. 
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Ms. Kirk argues that a number of reasons cut in favor of her not being required to 

have raised the issue in the administrative proceeding. The Court will consider them one 

in turn. 

i. Ms. Kirk’s argument that exhaustion of administrative remedies is not 

required nor jurisdictional

Regardless of whether statutes or regulations require administrative exhaustion, 

courts will generally not review issues not raised in administrative proceedings. Reid, 765 

F.2d at 1460; see also Sims, 530 U.S. at 108 (“It is true that we have imposed an issueexhaustion requirement even in the absence of a statute or regulation.”). Exceptions to this 

rule are only found in limited, extraordinary circumstances. M.M. Sundt Const. Co., 37 

F.3d at 1420–21. The rule is longstanding, and its rationale is intuitive: “Simple fairness to 

those who are engaged in the tasks of administration, and to litigants, requires as a general 

rule that courts should not topple over administrative decisions unless the administrative 

body not only has erred but has erred against objection made at the time appropriate under 

its practice.” United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 37 (1952). It would 

“usurp[] the agency’s function” to set aside an administrative decision on a ground not 

presented to the agency. Unemployment compensation Commission of Territory of Alaska 

v. Aragon, 329 U.S. 142, 155 (1946). Furthermore, in reviewing an agency proceeding, 

“the function of the district court is to determine whether or not as a matter of law the 

evidence in the administrative record permitted the agency to make the decision it did.” 

Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). De novo factfinding by 

the district court on review of an agency proceeding is rarely done. Id. 

 Ms. Kirk has not provided any persuasive authority for why she represents an 

exceptional circumstance to exempt her from the general rule. Unlike in Sims, ONHIR 

proceedings are adversarial, featuring testimony and evidence from both sides and 

competing memoranda before an independent adjudicator. When the administrative 

proceedings are adversarial, the parties are expected to develop the issues and “the rationale 

for requiring issue exhaustion is at its greatest.” Sims, 530 U.S. at 109–10. Allowing Ms. 

Kirk to bypass administrative review on this issue would be akin to allowing an appellate 
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court to consider issues not presented at trial. It would also require the Court to consider 

facts not in the record and to conduct de novo factfinding. This runs counter to the nature 

of judicial review of agency decisions. Ms. Kirk’s argument that she can bring Count II 

because exhaustion of administrative remedies is not required nor jurisdictional is 

unpersuasive. 

ii. Ms. Kirk’s argument that the McCarthy balancing test favors not 

dismissing Count II

Ms. Kirk argues that the McCarthy balancing test weighs in favor of not requiring 

exhaustion here. To determine whether exhaustion is required, courts must “balance the 

interest of the individual in retaining prompt access to a federal judicial forum against 

countervailing institutional interests favoring exhaustion.” McCarthy, 503 U.S. at 146. 

McCarthy provides some guidance on what institutional interests should be considered. 

Exhaustion protects “administrative authority” and “promotes judicial efficiency.” Id. at 

145. It promotes judicial efficiency by allowing an agency to correct its own mistakes, by 

preventing piecemeal appeals, and by developing a useful record for review. Id. Exhaustion 

considerations are given extra weight when the agency proceedings allow the agency to 

apply its “special expertise” and when bypassing the administrative process could weaken 

an agency’s effectiveness by encouraging disregard of its procedures. Id.

 Ms. Kirk relies on Ortega-Morales v. Lynch, 168 F. Supp.3d 1228 (D. Ariz. 2016) 

to argue that requiring prudential exhaustion is inappropriate here. There, the Court held 

that prudential exhaustion was not required when appealing from a United States 

Citizenship and Immigration Services (“USCIS”) ruling that denied plaintiffs’ applications 

to become United States Citizens. Id. at 1232. Ms. Kirk’s arguments focus on the fact that 

the statute in that case did not impose any exhaustion requirement. Id. at 1236. What the 

case reveals, however, is that the lack of an exhaustion requirement was not the crux of the 

issue. The Court held that prudential exhaustion was inappropriate because the statute 

mandated de novo review by the Court. Id. at 1240. Therefore, the institutional interests of 

USCIS were much lower than when Congress “assigns an agency the main decisionmaking role and to the courts only a reviewing role to check whether the agency crossed 
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over its bounds of determining facts and law and of exercising discretion.” Id. 

 ONHIR has much stronger institutional interests favoring exhaustion than USCIS 

did in Ortega-Morales. It is the primary decision maker of whether an applicant receives 

relocation benefits and judicial review is much more deferential. See Bedoni, 878 F.2d at 

1122. If courts were to decide an issue not raised in the ONHIR proceedings, it would 

interfere with their proceedings and result in the courts conducting their own factfinding 

and conducting review inconsistent with the deferential role mandated by congress. See 5 

U.S.C. § 706. Furthermore, allowing applicants to bypass administrative review on 

particular issues would encourage disregard of ONHIR’s procedures. At this point, it would 

encourage all potential applicants that missed the July 7, 1986, deadline, but have since 

applied for relocation benefits to file suit in district court whether they have received a final 

agency action or not. The institutional considerations are strong. 

McCarthy also provides guidance for what to consider when evaluating the 

individual interests: (1) whether resorting to an administrative prejudice may cause undue 

prejudice such as an unreasonable or indefinite timeframe for administrative action; (2) 

whether the agency could grant effective relieve; and (3) whether the agency has shown to 

be biased or has otherwise predetermined the issue. 503 U.S. at 146–49. First, while the 

Court is sympathetic to the delay for Ms. Kirk, there is not evidence that the delay in 

ONHIR proceedings is unreasonable. In the wake of Herbert, ONHIR developed new 

policies and procedures that caused a delay in commencing proceedings. (AR 78–79). They 

also received “almost 1300” additional applicants around that same time. (AR 78–79). 

Additionally, Ms. Kirk’s own delay of almost six years from final agency action to filing 

suit seems to indicate time is not of the essence for her. Second, Ms. Kirk is incorrect that 

ONHIR is not able to grant effective relief. As she states herself, ONHIR was “created by 

Congress pursuant to the Settlement Act, Pub. L. No. 93-531, . . . to carry out the relocation 

of members of the Navajo and Hopi Tribes who resided on land partitioned to the other 

tribe and provide relocation assistance benefits for households required to relocate.” 

Complaint ¶ 16. There is no reason to believe that she cannot raise her breach of fiduciary 
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duty claim in an administrative hearing, obtain a ruling, and file for judicial review under 

the APA, much like Herbert did. Third, there is no direct evidence that ONHIR is biased 

or predetermined this issue. Ms. Kirk points to the IHO’s low rate of overturning appeals 

as evidence of ONHIR’s bias or predetermination of the issue. This Court, however, is in 

no position to second guess the IHO’s decisions in cases not before it. Accordingly, the 

institutional considerations favoring exhaustion outweigh Ms. Kirk’s individual interests 

in this case. 

IV. Conclusion 

Ms. Kirk failed to raise the fiduciary duty issue in her administrative proceeding. 

The general rule is that such a failure prevents judicial review of issues not raised in the 

administrative proceeding, and Ms. Kirk has not persuaded the Court that her 

circumstances are one of the exceptions to the rule. Therefore, the Court cannot review it. 

Accordingly, it is ordered GRANTING ONHIR’s Motion to Dismiss Count II. 

 Dated this 12th day of February, 2019.