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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Alvin Whitehair

Plaintiff, 

v. 

Office of Navajo and Hopi Indian 

Relocation, an Administrative Agency of 

the United States, 

Defendant. 

No. CV-17-8278-PCT-DGC 

ORDER 

 Plaintiff Alvin Whitehair, a member of the Navajo Nation, sought judicial review 

of the administrative decision by the Office of Navajo and Hopi Indian Relocation 

(“ONHIR”) denying him relocation benefits under the Navajo-Hopi Settlement Act. 

Doc. 1. The parties filed motions for summary judgment, and the Court denied Plaintiff’s 

motion in part and granted it in part, remanding for further proceedings. Doc. 20. 

Defendant filed a notice of appeal, but later dismissed it. Docs. 22-24. 

Plaintiff now moves for attorneys’ fees of $15,468.53 pursuant to 28 U.S.C. § 2412, 

the Equal Access to Justice Act (“EAJA”). Doc. 25. The motion is fully briefed. Docs. 28, 

29. The Court will grant the motion. 

I. Legal Standard. 

Under the EAJA, a court shall award to a prevailing party the attorneys’ fees 

incurred by that party in any civil action brought against the United States, unless the 
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United States’ position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A); see also 

Decker v. Berryhill, 856 F.3d 659, 663-64 (9th Cir. 2017). The government has the burden 

of showing that its position was substantially justified. Tobeler v. Colvin, 749 F.3d 830, 

832 (9th Cir. 2014). “Substantially justified” means “justified in substance or in the main –

that is, justified to a degree that could satisfy a reasonable person.” Id. (quoting Pierce v. 

Underwood, 487 U.S. 552, 565 (1988)). In other words, the government’s position must 

have a “reasonable basis in both law and fact.” Id. (quoting Pierce, 487 U.S. at 565). “The 

‘position of the United States’ includes both the government’s litigation position and the 

underlying agency action giving rise to the civil action.” Id. (quoting Meier v. Colvin, 727 

F.3d 867, 870 (9th Cir. 2013)). 

II. Discussion.

The full background and the parties’ summary judgment arguments are set out in 

the Court’s December 6, 2018 summary judgment ruling. See Doc. 20. In sum, Plaintiff, 

as a Navajo applicant for relocation benefits, had the burden to prove that he was (1) a legal 

resident of the Hopi Partitioned Lands on December 22, 1974, and (2) a head of household 

on or before July 7, 1986. 25 C.F.R. § 700.147. Only the second element was in dispute – a 

status which Plaintiff could prove by demonstrating that he “actually maintained and 

supported” himself. See Doc. 20 at 2, 7; see also 25 C.F.R. § 700.69(a)(2). 

Plaintiff argued before the Hearing Officer that he satisfied the head-of-household 

element for several reasons, which the Officer ultimately rejected. The Officer accepted 

Plaintiff’s testimony that he operated a vending machine business in 1985 and 1986, but 

rejected Plaintiff’s purported income of $20,000 as unsupported by the evidence. The 

Hearing Officer stated specific and cogent reasons for his credibility determinations as to 

Plaintiff and Plaintiff’s wife, and his findings were supported by the evidence, save one. 

The Officer’s decision was legally flawed for failing to make specific findings about 

Plaintiff’s likely income during 1985 and 1986 and whether Plaintiff actually maintained 

and supported himself on less income than he claimed to have earned. Id. at 9. 
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Plaintiff contends that an award of attorneys’ fees is appropriate because the 

government’s position was not substantially justified. Docs. 25, 29. The government 

argues that its position was substantially justified because the Court found in favor of the 

Hearing Officer’s decision in all respects except one, citing the following findings from 

the summary judgment ruling. Docs. 28 at 4; 20 at 8-9. The Court found that the Hearing 

Officer provided specific, cogent reasons for discrediting Plaintiff’s testimony about his 

income in 1985 and 1986; the determination that Plaintiff failed to corroborate or 

substantiate his income claims was not arbitrary and capricious; and the Officer’s 

determination that Plaintiff’s marriage after the relevant period did not provide a basis for 

head of household status was supported by the evidence. Doc. 20 at 5-7. 

The sole issue before the Hearing Officer was whether Plaintiff qualified as a head 

of household on or before July 7, 1986. The Officer credited Plaintiff’s testimony that he 

operated a vending machine business in 1985 and 1986, but rejected his estimated income. 

Yet the Officer made no findings about Plaintiff’s likely income from that business, and he 

did not address whether Plaintiff otherwise maintained and supported himself with that 

income. The Court found this deficiency to be arbitrary and capricious because the Officer 

“entirely failed to consider an important aspect of the problem.” Id. (quoting O’Keeffe’s, 

Inc. v. U.S. Consumer Prods. Safety Comm’n, 92 F.3d 940, 942 (9th Cir. 1996)). 

While “arbitrary and capricious conduct is not per se unreasonable,” Andrew v. 

Bowen, 837 F.2d 875, 878 (9th Cir. 1988), the Ninth Circuit has repeatedly stated that when 

an agency’s decision is unsupported by substantial evidence it is “a strong indication that 

the ‘position of the United States’ [is] not substantially justified,” Thangaraja v. Gonzales, 

428 F.3d 870, 874 (9th Cir. 2005); see Meier, 727 F.3d at 872. Indeed, the Ninth Circuit 

has stated that “it will be only a decidedly unusual case in which there is substantial 

justification under the EAJA even though the agency’s decision was reversed as lacking in 

reasonable, substantial and probative evidence in the record.” Thangaraja, 428 F.3d at 874 

(internal quotations omitted). While the government is correct that the Court found in favor 

of the Hearing Officer’s decision in all respects except one, the Officer’s decision was 
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clearly legally flawed for failing to address the principal issue before him – whether 

Plaintiff maintained and supported himself with income from his vending machine 

business. The Court remanded for additional proceedings rather than simply reversing, but 

cannot conclude that the Hearing Officer’s position had a “reasonable basis both in law 

and fact” when he determined, based on no factual findings, that Plaintiff failed to make a 

prima facie showing of self-support. See Tobeler, 749 F.3d at 832; Doc. 20 at 9. 

The government urges the Court to find its position substantially justified because 

the Court “found multiple instances where the Agency’s determination was appropriate, 

and the remand, in essence, addressed a singular insufficiency in the administrative order 

itself, not the substance of the decision.” Doc. 28 at 5. This characterization is not accurate. 

While the Court disposed of all but one of Plaintiff’s arguments on review, the Court 

remanded for additional proceedings on the dispositive issue – the amount of Plaintiff’s 

earned income in 1985 and 1986, and whether Plaintiff actually maintained and supported 

himself as a head of household. See 25 C.F.R. §§ 700.147, 700.69(a)(2). This singular 

insufficiency went to the heart of Plaintiff’s claim for benefits. The Court cannot conclude 

that the Hearing Officer’s position was “justified to a degree that could satisfy a reasonable 

person” when he failed to make the necessary findings to assess Plaintiff’s entitlement. See 

Meier, 727 F.3d at 872 (quoting Pierce, 487 U.S. at 565). Because “the government’s 

underlying position was not substantially justified, [the Court] need not address whether 

the government’s litigation position was justified.” Id. 

The government does not argue that the amount of fees Plaintiff seeks is 

inappropriate. Doc. 28. 

IT IS ORDERED that Plaintiff’s motion for attorneys’ fees (Doc. 25) is granted. 

Plaintiff is awarded $15,468.53 in attorneys’ fees. 

 Dated this 19th day of June, 2019.